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o'.^TH CoNGKEsy, ( SENATE. i Document 

M Session. \ 1 No. 227. 



EASTERN CHEROKEES. 



Mr. Long presented the following 

PAPERS IN THE CAUSE OF THE EASTERN CHEROKEES AGAINST 
THE UNITED STATES. 



January 18, 1907.— Refeired to the Committee on Indian Affairs and ordered to be 

printed . 



To the Senate and House of Representatives of the United States: 

The memorial of the Eastern Cherokees respectfully shows that 
on Februarj^ 24, 1900, they entered into a contract with John Vaile, 
of Fort Smith, Ark., and on April 20, 1901, they entered into a sec- 
ond contract with said Vaile, by which the said Vade undertook for 
himself and his associates to collect for your memorialists then- 
claim against the United States under what is known as the Slade 
and Bender accounting and settlement, which claim amounts to 
$1,111,284.70, with interest thereon at 5 per cent per annum from 
June 12, 1838, to which your memorialists were solely entitled, as 
will be hereinafter shown; that by the terms of said contract said 
Vaile and his associates were to be paid 15 per cent of the amount 
awarded to your memorialists; that immediately upon the making 
of said contract said Vaile associated with him Col. Robert L. Owen. 
Vaile & Owen, acting in behalf of your memorialists under said con- 
tract, procured a reference of the claim of your memorialists to the 
Court of Claims under the terms and provisions of the act of March 
3 1883 known as the Bowman Act, and there prosecuted the said 
claim, it being case No. 10386, Congressional, until on Aprd 28, 1902, 
the Court of Claims made findings of fact in favor of your memorial- 
ists, and on May 2, 1902, certified the same to the Senate of the 
United States. 'Said findings of fact are printed as Senate Docu- 
ment No. 334, Fifty-seventh Congress, first session, and are filed 
herewith, marked "Exhibit 1." , , ^ t i i mno 

While said findings of fact were before Congress, on Jidy 1, 1902, 
Congress passed an act by the sixty-eighth section of which the exist- 
ence of the dispute between your memorialists and the Cherokee 
Nation as to the ownership of said funds was fully recognized which 
dispute was further recognized by the act of March 3, 1903 (32 Stat. 
L 996) and the Court of Claims was hivested with jurisdiction to 
hear and determine the controversy between your memorialists and 
the said Cherokee Nation. 



EASTERN CHEEUKEES. 



Your memorialists further show that by virtue of the provisions 
of said section 6S of the act of Congress of July 1, 1902 (32 Stat. L.. 
726), as amended by the act of March 3, 1903, petitions were filed 
by said Cherokee Nation and your memorialists, respectively, and 
said Court of Claims and the Supreme Court of the United States 
both determined that said fund belonged to your memorialists and 
should be distributed to your memorialists as individuals, all of 
which fully appears fi'om the report of said case (202 U. S., 101). 

Your memorialists further show that while their contract with 
said John Vaile (known as the ''Owen contract") was in full force, 
the Cherokee Nation (claiming the ownership of said fund and denying 
your meinorialists any interest therein even as cestius que trustent) 
through its principal chief, Thomas M. Bufhngton, on January 16, 
1903, entered into a contract, a copy of which is filed herewith 
marked ''Exhibit 2," for the purpose of defeating the claim of your 
memoriahsts, with Finklenberg, Nagel & Kirby, a firm of St. Louis 
lawyers, and one, Edgar Smith, a lawyer of Vinita, Ind. T., by the 
terms of which the said lawyers v\-ere to receive a certain per cent of 
the sum which they might recover for the Cherokee Nation. Tliis 
contract was made and executed in the office of the Secretary of the 
Interior, acknowledged before a judge of the supreme court of the 
District of Columbia, and ap]}roved by the Secretary of the Interior 
and the Commissioner of Indian Afl'airs all on one day — to wit, Janu- 
ary 10, 1903— and without any notice to your memorialists, and four 
days thereafter the petition of said Cherokee Nation, prajdng that 
said fund be awarded to it to the exclusion of your memorialists, was 
filed by said St. Louis and Indian Territory law3'ers, as attorneys for 
said nation. 

Your memorialists further show that from the day of the execution 
of said contract to the present moment said Finklenberg, Nagel & 
Kirby and Edgar Smith, as required by their employment, \ave 
denied the right of your memorialists to said fund, and have, by then- 
pleadings, briefs, and oral arguments in the Court of Claims, the 
Supreme Court of the United States, and the supreme court of the 
District of Columbia, used their unceasing, though unsuccessful, 
eflorts to defeat the right of your memorialists to said fund, and your 
memorialists, to sustain their statement on their behalf, file herewith 
the printed brief of said Finklenberg, Nagel & Kirby and Edo-ar Smith 
m said cause m the Supreme Court of the United States, as ' 'Exhibit 3 " 
No application was ever made to the Court of Claims for fees to 
the said attorneys of the Cherokee Nation based upon the recovery 
of the item involved in the Slade and Bender accountino-, and the 
said court never had or attempted to take jurisdiction in that behalf, 
as more^tully appears on page — of the reply brief of the attornevs 
for the Cherokee Nation in the Supreme Court of the United States, 
above referred to as "Exhibit No. 3;" but your memorialists, under 
and by virtue of the act of Congress of March 3, 1903 (32 Stat L 
996) applied to the Court of Claims for an allowance of fees based 
on the recovery of said item to be paid to thefi- attorneys, and on 
May 28, 1906 the said court by its final decree in said cause awarded 
to said John Vaile and his associates 15 per cent of said $4,900,000 
so lound t.o be due to your memorialists as compensation to said 
V aile and his associates for their services rendered to your memori- 
alises, being the amount agreed to be paid to said Vaile and Ms asso- 

^£8 26 1907 
D. ofD. 



EASTERN CHEROKEES. 3 

"ciates by said contract of Februaiy, 1900, said fee to Vaile and his 
associates amounting to $740,555.31, and has been paid by your 
memoriahsts tlii-ough the Treasury of the United States, though 
your memoriahsts have not yet received for themselves a single cent 
of the sum so found to belong to them. And your memorialists file 
herewith a certified copy of said final judgment of the Court of 
Claims, marked ''Exhibit No. 4."' 

Your memorialists further show that a few days after said pay- 
ment by them of said sum of $740,555.31 to their own attorneys they 
learned that Ethan Allen Hitchcock, Secretary of the Interior, was 
about to distribute or cause to be distributed to said Finklenberg, 
Nagel & Kirby and Edgar Smith or in some way authorize or empower 
Charles H. Treat, Treasurer of the United States, to pay to them about 
$150,000 out of the said sum belonging to your memorialists for serv- 
ices which he, the said Hitchcock, had certified, or was about to 
certif}^, to said Treasurer, had been rendered by said Finl^lenberg, 
Nagel & Khby and Edgar Smith in recovering said monej^. Where- 
upon Frank J. Boudinot, one of theu' number, applied on behalf of 
himself and your memorialists to the supreme court of the District 
of Columbia for a wTit of injunction to restrain said Hitchcock from 
dhecting said payment and said Charles H. Treat, Treasurer, from 
pajdng any sum to said Finlvlenberg, Nagel <fe Kii-bj^ and Edgar 
Smith. Upon the return to a rule to show cause why said injunction 
should not issue the attorneys who now represent your memorialists 
argued the question before the court orally and submitted in support 
of then* contention a printed brief, a copy of which is filed herewith, 
marked ''Exhibit No. 5." Whereupon Mr. Justice Gould, in an 
opinion held that he had no power to issue said writ and denied the 
same on September 21, 1906, and on October 8, 1906, mthout a 
submission of the cause to him on bill and answer, denied to your 
memorialists the right to take proof in support of the allegations of 
said bill, though no demurrer had been interposed nor had there 
been a submission of the case on bill and answer, a ruling admitted 
by him at the time he announced it to be without precedent. (See 
certified cop}^ of the record in said cause of Boudinot v. Hitchcock, 
filed herewith as Exhibit No. 6.) 

On September 21, 1906, the said solicitors for your memorialists 
wrote and transmitted to Charles H. Treat a letter, of which Exhibit 
No. 7 is a press copy, and received Exhibit No. 8 in reply. In response 
to Exhibit No. 8 these solicitors waited upon the Solicitor of the Treas- 
ury and laid the matter before him, and it was but a short while 
thereafter that Judge Gould dismissed the bill of complaint, as above 
described. Boudinot prayed an appeal from the order dismissing his 
bill of complaint, but before his transcript of record could be prepared 
by the clerk — to wit, on November 3, 1906 — the Treasurer of the 
United States paid to said Finklenberg, Nagel & Kirby and Edgar 
Smith, by Indian warrant 12947, the sum of $149,324.80 out of the said 
moneys awarded to your memoralists by the decree of the Court of 
Claims and appropriated to be paid to them by the general deficiency 
bill passed June 30, 1906. Your memorialists show that it was use- 
less for them to prosecute the appeal in the Boudinot case further, as 
the money, the pa^anent of which he had sought to restrain, had been 
paid. The situation was this: The prayer for injunction had been 
denied, he was therefore not allowed to give a bond, though he would 



KAmflRN CH ERO K KES.- 



have <riveii one if the injunc'tioii had been granted. His bill was dis- 
missed, and, as there had beers no order of the court .staying tiie pay- 
ment, the Treasurer ni his wisdom saw fit, to pay it, and tlie fund 
being paid, no appehate court wotdd or could rest^ore it 

lour nieinorialists therefore submit that a grievous wrom in thi^ 
behall has been done them which the court has not set right m that 
their money lias be^n taken without due process or any process of law 
lor the payment of lawyers for an unsuccessful effort to defeat their 
clann, and they submit that because the court has failed to redress- 
then- ^^-rongs the greater they believe is the necessity for action by your 
honorable body m order that appropriation may be made to pay to 
them the money which has thus wrongfullv been taken from them 
inasmuch as there were three items, to wit, items 1 3 and 4 I'n 
the judgment of the Court of Claims', which were paya'ble to tl^ 
Cherokee Nation and m which your memorialists had no interest 
«9\T f^.i"' '^^^ ^%^^^^ ^^^'000, your memorialists concede that 
$2,300 of the sum of $149,324.80 paid to the said attorneys of the 
Cherokee Nation was properly paid, but they respectfully submit that 
the remainder of said payment, $147,024.80, was improperly paid 
\\ herefore they pray that your honorable body wil make an appro- 

K 4Trm .'n f^'^r'^'y "^ '^'^ Treasury not otherwise appropriSed 
of $14/ ,024.80 for tlie payment to them of the said claim. 

Chakles Poe, 
Sam'l a. Putman, 
Sohcitors for FaMeni CheroTcees. 



EK- 



[Seuate Dot-uiueiit iM„. y;-i4, Fi.ty-seventh Congress, first s.s.si.m.] 

Exhibit No. 1. 

Court op Claims, Clerk's Office, 

l-)y the resolution of the Senate of t£ S i'l if !; ^^'''} ''T ^^' ¥''''''^ *» ^^i« ^o^rt 
I am, very respeSoiy, yours, etc "" """'^'^ *^' '''' °^ ^^^''^ •'^' ^883. 

John Randolph 
Hon. William P. Frye, Assistant Clerk Court of Claims. 

President of the Senate pro tempore. 



"" '" """ "' '"""■ '""'"■—' ScS-L/sSS-^"'" =■'• -■ •'■- -"'™ - *- '■ 



Tlie United States.]' 
STATEMENT. 



awaK'i lis.t,'" h/s;i!„f iif i'4™ rii'"= {"'■ "-' «--' «' "- 



EASTERN CHEROKEES. 5 

now pending in the Senate, together with all the accompanying papers, be, and the 
same is hereby, referred to the Court of Claims, in pursuance of the provisions of an 
act entitled 'An act to afford assistance and relief to Congress and the Executive 
Departments in the investigation of claims and demands against the Government,' 
approved March 3, 1883; and the said court shall proceed with the same in accord- 
ance with the provisions of such act, and report to the Senate in accordance therewith." 
Senate bill 3681, referred to in the above resolution, is as follows: 

" A BILL providing for the payment of the award of the Secretary of the Interior in favor of the Chero- 
kees made under the provision of the act of Congress of March third, eighteen hundred and ninetv- 
three. 

"WTiereas by the act of Congi-ess approved March third, eighteen himdred and 
ninety-three (Twenty-seventh Statutes, page six hundred and fortv), the so-called 
Cherokee agreement was -ratified by the Congress of the United States'' *. * * and 
it was agreed therein that 'the provisions of said agreement so amended shall be fully 
performed and carried out (m the part of the United States;' and 

"Whereas in said Cherokee agi-eement it was expressly provided that 'the United 
States shall without delay render to the Cherokee Nation' 'a complete account of 
moneys due the Cherokee Nation under any of the treaties,' and 'if it shall be found 
upon such accounting that any sum of money has been so withheld the amount shall 
be duly appropriated by Congress' 'at the session immediately following such account- 
ing;' and 

"\\Tiereas the said act of Congress appropriated the sum of five thousand dollars 
(Twenty-seven Statutes, six hundred and forty-three) 'to enable the Commissioner 
of Indian Affairs, under the direction of the Secretary of the Interior, to employ 
such expert person or persons to properly render a complete account to the Cherokee 
Nation of moneys due said nation, as required by the fourth subdivision of article 
two of said agreement;' and 

"Whereas James A. Slade and Joseph T. Bender were duly appointed by the Secre- 
tary of the Interior as experts to render the account as above authorized by Con- 
gress, and did, on April twenty-eighth, eighteen hundred and ninety-four, report and 
render an account of certain sums due the Cherokee Nation, with interest thereon 
as itemized and set forth on page thirty-two. House of Representatives Executive 
Document Numbered One hundred and eighty-two. Fifty-third Congress, third ses- 
sion; and -*« 

"Whereas the Secretary of the Interior did, on January seventh, eighteen hundred 
and ninety-five, transmit, in compliance with the provision of the third subdivision 
of article two of the agreement made December nineteenth, eighteen hundred and 
ninety-one, with the Cherokee Indians, the above complete account of moneys due 
the Cherokee Nation, prepared in accordance with the provisions of the said act of 
March third, eighteen hundred and ninety-three, together with a certified copy of an 
act of the Cherokee national council accepting said accounting: Now, therefore, 

"Be it enacted by the Senate and House of Representatives of the United States of America 
in Concjress assembled, That there is hereby appropriated, out of any money in the 
Treasury not otherwise appropriated, a sum sufficient to refund to the five million 
dollar fund of the Eastern Cherokees the amount eiToneously withdrawn therefrom 
on account of the removal of the Eastern Cherokees under the treaty of eighteen 
hundred and thirty-five to the Indian Temtory, together with interest thereon, as 
found due by James A. Slade and Joseph T. Bender, expert accountants, acting under 
the direction of the Secretary of the Interior, in pursuance of the provisions of the 
act of Congress of March third, eighteen hundred and ninety -three, said interest to 
be computed at the rate of five per centum per annum from June twelfth, eighteen 
hundred and thirty-eight, until paid, in accordance with the resolution of the Senate 
of the United States of September fifth, eighteen hundred and fifty; and the Secretary 
of the Treasury is hereby directed to pay the princii^al and interest of said sum to the 
said Eastern Cherokee Indians, per capita, in accordance with the ninth article of 
the treaty of eighteen hundred and forty-six." 

The case was brought to a hearing on its merits on the 24th day of ^larch, 1902. 
Robert L. Owen, esq., was heard for the Eastern Cherokees residing in the Indian 
Territory; Mrs. Belva A. Lockwood was heard for certain individual Cherokees 
residing, some in the Indian Territory and some in the State of North Carolina; R. V. 
Belt, esq., was heard for the Eastern Clierokees residing in the State of North Carolina 
and in other States east of the Mississippi, and L. T. Michener, esq., was heard for the 
Cherokee Nation; and the Attorney-General, by George H. Gorman, esq., his assistant, 
and under his direction, appeared for the defense and protection of the interests of 
the United States. 



(> EASTERN CHEROKEES. 

The court, upon the evidence and after considering the briefs and arguments of 
counsel on both sides, makes the following 

FINDINGS OF PACT. 

I. At the time of the signing of the treaty between the United States and the 
Cherokee Nation, December 29, 1835 (7 Stat. L., p. 478), commonly known as the 
treaty of New Echota, several thousand Cherokees had removed from the Cherokee 
country east of the Mississippi and were settled in what is now the Indian Territory. 
To distinguish them from the Cherokees who remained in the Cherokee country they 
were popularly called and knowm as the Western Cherokees. After the removal of the 
Cherokee Nation to the Indian Territory, in pursuance of the treaty, the term West- 
ern Cherokees was no longer distinctive, and the members of the nation who had 
been known as such were thereafter popularly known as the "Old Settlers." Bu 
the Cherokees who removed to the Indian Territory after the signature of the treaty 
of December 29, 1835, as well as those who remained permanently east of the Missis- 
sippi, continued to be popularly known as the Eastern Cherokees; and all Eastern 
Cherokees, by virtue of their individual communal rights as members of the Chero- 
kee Nation, are the parties claimants in this suit. 

II. The claims presented by and considered in this suit sprang out of the treaty 
concluded at New Echota, in the State of Georgia, on the 29th day of December, 1835 
(7 Stat. L., p. 478), the subsequent treaties between the United States and the Chero- 
kee Nation having been made and entered into to compromise and settle differences 
of construction which had been given by the parties respectiA'ely to the treaty and 
to correct errors and mistakes which had been made by the officers and agents of the 
United States. 

III. At the time when the treaty of 1835 was framed it was assumed by the author- 
ities of the United States that the treaty fund of $5,000,000, after the payment of the 
specific charges upon the fund, would leave a surplus sufficient to pay for the removal 
of the Cherokees to their new home in the Indian Territory and for one year's sub- 
sistence after arriving there, and would still leave an additional surplus to be dis- 
tributed per capita among the individual members of the community — that is, the 
Eastern Cherokees. But before effect was given to the ti-eaty it was ascertained 
that the surplus remaining after satisfying the specific charges upon the fund would 
be insufficient to meet the expenses of the removal of the Cherokees and of their 
subsistence in the Indian Territory. Accordingly, by the supplementary articles of 
the treaty l^earing date March 1. 1836 (7 Stat. L., p. 488), an additional amount of 
$600,000 was "allowed to the Cherokee people to include the expense of their 
removal and all claims of every nature and description against the Government of 
the United States not herein otherwise specifically provided for." This sum of 
$600,000 was to be "applied and distriliuted agreeably to the provisions of the said 
treaty, and any surplus which might remain after removal and payment of the claims 
so ascertained--' was to be "turned over and belong to the education fund." But 
this additional amount of $600,000 was insufficient for the pui-poses intended, and a 
portion of it was applied to other purposes, leaving nothing to be distributed per 
capita among the Cherokees. 

IV. The cost of the removal of the Cherokees from Georgia to the Indian Territory, 
paid and expended by the United States, was $1,493,485.92, of v^^hich amount 
$335,105.91 was contributed by the United States, being derived from the $600,000 
treaty fund of 1836, and $1,111,284.70 was contributed bv the Cherokees, being derived 
from the $5,000,000 treaty fund of 1835. The cost of subsisting the Cherokees after 
their arrival in the Indian Territory was subsequently refunded to the treaty fund of 
$5,000,000 and paid to the Cherokees, as hereinafter shown. 

V. Of the amount paid by the United States for the removal of the Cherokees 
from Georgia to the Indian Territory, $1,493,485.92, as set forth in the preceding 
finding, $137,740 was expended for the removal of 2,200 Cherokees who had volun- 
tarily emigrated (27 Ct. Cls. Reports, p. 3, Finding III) at a cost to the Government 
of $61.70 per capita (Senate Doc. No. 215, Fifty-sixth Congress, first session, p. 78); and 
$1,357,745.92 was paid to John and Lewis Ross for the removal of the remainder of 
the Cherokees in 1838. (Sen. Doc, supra.) 

Of the total $1,493,485.92 paid for removal, as above set forth, $382,201.22 was paid 
out of the amount appropriated, $1,647,067, by the acts of July 2, 1836, and June 12, 
1838, the l)alance, $1,111,284.70, being charged against the $5,000,000 fund, as before 
set forth, and still remaining a charge against that fund. (Senate Doc. 215. Fifty- 
sixth Congress, first session, p. 95.) 

VI. ImnKHliately after the execution of the treaty of New Echota and before the 
removal of any members of the nation, the Cherokees declared and protested that 
they had^^lieen led to believe that the cost of removal and subsistence was to be borne 



EASTERN CHEROKEES. 7 

exclusively by the United States and was not to be a charge upon the treaty fund, 
and they refused to remove to the West. Previous to the signature of the treaty, and 
before the Cherokees consented to remove to the West, the following transactions 
occurred. 

On March 5, 1835, the Senate of the United States, by resolution, advised: 

"That a sum not exceeding five millions of dollars be paid to the Cherokee Indians 
for all their lands and possessions east of the Mississippi River." (Senate Doc. 215, 
Fifty-sixth Congress, fu-st session, p. 77.) 

On March 14, 1835, a treaty was drawn up by J. F. Schermerhorn, commissioner 
on the part of the United States, for submission to the Cherokees, in which it was 
proposed that the sum of five million dollars should be paid to them for their lands 
and possessions in accordance with the foregoing resolution of the Senate, but that 
there should be deducted from the said sum of five millions of dollars two hundred 
and fifty-five thousand dollars for the expenses of the removal of the members of the 
tribe. (Ibid., 81 and 82.) 

At this time the treaty of 1828 (7 Stat. L., 313) was in full force, by the eighth article 
of which it was provided that the United States would pay the cost of removal of the 
Cherokees from the East to the West. 

This proposed treaty was rejected by the Cherokee council on October 23, 1835, 
for the reason that the expense of removal was proposed to be charged to the five- 
million-dollar fund (Ibid., 831, par. 5). The rejection of this treaty was unanimous. 
(Senate Doc. No. 120, Twenty-fifth Congress, second session, 459.) 

During the consideration of this proposed treaty by the Indians, a letter from Presi- 
dent Jackson, bearing date March 16, 1835, was read to the Cherokees, purporting to 
explain the proposed treaty. That letter is as follows: 

"I shall m the course of a short time appoint commissioners for the purpose of 
meeting the whole body of your people in council. They will explain to you more 
fully my views and the nature of the stipulations which are offered to you. 

"These stipulations provide — 

"1st. For an addition to the country already assigned to you west of the Mississippi, 
and for the conveyance of the whole of it by patent in fee simple, and also for the 
secui'ity of the necessray political rights, and for preventing white persons from tres- 
passing upon you. 

"2d. For the payment of the whole value to each individual of his possessions in 
Georgia, Alabama, North Carolina, and Tennessee. 

"3d. For the removal, at the expense of the United States, of your whole people; 
for their subsistence for a year after their arrival in their new country, and for a gratuity 
of one hundred and fifty dollars to each person. 

"4th. For the usual supply of rifles, blankets, and kettles. 

"5th. For the investment of the sum of four hundred thousand dollars, in order 
to secure a permanent annuity. 

"6th. For adequate provisions for schools, agricultural instruments, domestic 
animals, missionary establishments, the support of orphans, etc. 

"7th. For the payment of claims. 

"8th. For granting pensions to such of your people as have been disabled in the 
service of the United States. 

"These are the general provisions contained in the arrangement. But there are 
many other details favorable to you which I do not stop here to enumerate, as they 
will be placed before you in the arrangement itself. Their total amount is four mil- 
lion five hundred thousand dollars, which, added to the sum of five hundred thou- 
sand dollars, estimated as the value of the additional land granted you, makes five 
millions of dollars — a sum, if equally divided among all your people east of the Missis- 
sippi, estimating them at ten thousand, which I believe is their full number, 
would give five hundred dollars to every man, woman, and child in your nation. 
There are few separate communities whose property, if divided, would give to the 
persons composing them such an amount." (Senate Doc. No. 215, Fifty-sixth Con- 
gress, first session, 82.) 

After the signature of the treaty the leaders of the treaty party who signed the 
treaty contended that the sum of $5,000,000 was not intended to include the amount 
whicli might be required to remove them. The President was willing that this sub- 
ject should be referred to the Senate for its consideration, to the end that if the expense 
of removal was not to be charged to the treaty fund such further pro^'isions should 
be made therefor as might appear to the Senate to be just. The Senate thereupon 
agreed that the sum of $600,000 should be allowed to the Cherokee people to include 
the expense of their removal. This sum was estimated as more than sufficient to pay 
the cost of such removal, and it was provided that whatever surplus remained after 
the payment of the expenses of removal, and certain other claims, should be turned 
over and belong to the education fund. (7 Stat. L., p. 489; 1 Supp., art. 3.) 



8 EASTERN CHEROKEES. 

On July 2, 1836, Congress confirmed the action of the Senate and appropriated the 
$600,000. (5 Stat. L., p. 73.) 

In May, 1838, the President transmitted to Congress a letter from the Secretary of 
War to John Ross, principal chief of the Cherokee Nation, bearing date of May 18, 1838, 
in which it was said: 

"If it be desired by the Cherokee Nation that their own agent should have charge 
of their emigration, their wishes will be complied with and instructions be given to 
the connnanding general in the Cherokee country to enter into arrangements with 
them to that effect: with regard to the expense of this operation, which you ask may 
be defrayed by the United States, in the opinion of the undersigned the request ought 
to be granted!^ and an application for such further sum as may be required for this 
purpose shall be made of Congress. " 

This last communication was transmitted to Congress; and on May 23, 1838, the 
House of Representatives, by resolution, required a statement of the amount neces- 
sary to pay for the removal and subsistence of the Cherokees. (Ibid., 78.) On May, 
25," 1838, the Secretary of War submitted an estimate to the Speaker of the House of 
Representatives "of the amount that would be required" to remove 15,840 Chero- 
kees and to subsist 18,336 Cherokees, stating that the sum necessary for this purpose 
was SI. 047, 067 (Ibid., 78); and on June 12, 1838. Congress appropriated the amount 
of this estimate with the provision that no part of it should pe deducted from the 
15,000,000 fund. (5 Stat. L.. 242.) 

Without further appropriation the removal of the Indians (except a small number 
which never removed) was accomplished. 

VII. The treaty of 1846 between the United States and the Cherokee Nation was 
entered into to restore peace and harmony among the Cherokee factions, to settle 
the claims of the Indians against the United States (preamble, treaty 1846, 9 Stat. L., 
p. 871), and "to make the Eastern and Western Cherokees parties to the treaty of 
New Echota, which thev had never conceded themselves to be." Western Cherokee 
Indians v. The United States. (27 Ct. Cls., 36, par. 5.) 

At the time when the treaty with the Cherokees of August 6, 1846 (9 Stat. L., p. 871), 
was being negotiated, the Cherokees insisted that the treaty fund had been 
improperly charged with various sums which ought to be corrected, and that they 
should receive from the United States a fair and just settlement which should only 
exhil)it money properly expended under the treaty of 1835. Accordingly, when 
the treaty of 1846 was drawn up it was provided in article three that various sums 
which had been improperly charged to the five million dollar fund should be reim- 
bursed, to wit: 

Those sums paid for rents under the name of improvements and spoliations for 
property of which the Indians were dispossessed, and under the head of reserva- 
tions, and under the head of expenses of making the treaty of New Echota; and the 
United States agreed to reimbm-se all other sums paid to any agent of the Government 
and improperly charged to said fund. (9 Stat. L., 872.) 

By the ninth article of the treaty, arranging the general plan of settlement, it was 
provided as follows: 

"The United States agi-ees to make a fair and just settlement of all moneys due to 
the Cherokees, and subject to the per capita division under the treaty of the twenty- 
ninth of December, eighteen hundred and thirty- five, which said settlement shall 
exhil)it all money properly expended under said treaty, and shall embrace all sums 
paid for improvements, ferries, spoliations, removal, su))sistance, and commutation 
therefor, debts and claims upon tlie Cherokee Nation of Indians for the additional 
quantity of land ceded to said nation; and the several sums provided in the several 
articles of the treaty to be invested as the general funds of the nation; and also all 
sums whic-h may be hereafter properly allowed and paid under the provisions of the 
treaty of 1835. The aggregate of which said several sums shall be deducted from 
the sum of six million six hundred and forty-seven thousand and sixty-seven dollars, 
and the ])alance thus found to be due shall be paid over, per capita in equal amounts, 
to all of those individuals, heads of families or their legal representatives, entitled to 
receive the same under the treaty of 1835 and the supplements of 1836, being all 
those Cherokees residing East at the date of said treaty and the supplement thereto." 
(9 Stat. L., 875.) 

This amount of six million six hundred and forty-seven thousand and sixty-seven 
dollars was made up as follows: 

The treaty fund of 1835 $5^ 000, 000 

Supplementary-articles fund 600, 000 

Appropriation act, June 12, 1838 (5 Stat. L., 242) .".'.'.'.. ............. 1, 047^ 067 

■ ""' Total 6,647,067 



EASTERM CHEROKEES. 9 

The treaty also provided that, whereas the Cherokee delegation contend that the 
amount expended for the one year's subsistence after the arrival in the West of the 
Eastern Cherokees is not properly chargeable to the treaty fund, it was thereby 
agreed that the question should be submitted to the Senate of the United States for 
its decision, which should decide whether the subsistence was to be borne by the 
United States or by the Cherokee funds; and if by the Cherokees, then to say whether 
the subsistence should be charged at a greater rate than thhty-three and thhty-three 
one-hiindredths dollars per head; and also the question whether the Cherokee 
Nation should be allowed interest on whatever sum should be found to be due the 
nation, and from what date and at what rate per annum. 

The Senate of the United States, acting as umpire under article eleven of the 
treaty of 1846, on September 5, 1850, passed the following resolution: 

"Resolved by the Senate of the United States, That the Cherokee Nation of Indians 
are entitled to the sum of one hundred and eighty-nine thousand four hundred and 
twenty-two dollars and seventy-six cents for subsistence, being the difference 
between the amount allowed by the act of June 12, 1838, and the amount actually 
paid and expended by the United States, and which excess was improperly charged 
to the treaty fund in the report of the accounting officers of the Treasury. 

"Resolved, That it is the sense of the Senate that interest at the rate of five per 
cent per annum should be allowed upon the sums found due to the Eastern and Western 
Cherokees, respectively, from the twelfth day of June, eighteen hundred and thirty- 
eight, until paid." (Sen. Journal, Thirtv-first Congress, first session, p. 602.) 
602.) 

This last amount was accordingly appropriated by Congress for that purpose by the 
act of September 30, 1850, with the provision that interest be paid on the same at 
the rate of five per cent per annum, according to a resolution of the Senate of the 5th of 
September, 1850. (9 Stat. L.. 556.) 

VIII. Under the ninth article of the treaty of 1846 the accounting officers of the 
United States made and prepared the account for settlement prescribed by that 
article, whereby it appears that after crediting the treaty fund of five million dollars 
with the cost of subsistence of the Indians at the West, with which it had been 
charged, there would remain a balance of nine hundred and fourteen thousand and 
twenty-six dollars and thirteen cents. Congi-ess accordingly appropriated, in addi- 
tion to the amount of one hundred and eighty-nine thousand four hundred and 
twenty-lwo dollars and seventy-six cents, which had been appropriated pursuant to 
the resolution of the Senate, seven hundred and twenty-four thousand six hundred 
and three dollars and thirty-seven cents; and there was thereupon paid and distrib- 
uted to the Eastern Cherokees, per capita, the above amounts, with interest thereon 
at five per cent from June 12, 1838, the same being paid and accepted under the act of 
September 30, 1850 (9 Stat. L., p. 556), which provided— 

"That said money shall be paid by the United States and received by the Indians 
on condition that the same shall be in full discharge of the amount thus improperly 
charged to the said treaty fund." 

And under the act of February 27, 1851, which provided — 

"That the sum now appropriated shall be in full satisfaction and a final settlenient 
of all claims and demands whatsoever of the Cherokee Nation against the United 
States, under any treaty heretofore made with the Cherokees. And the said Chero- 
kee Nation shall' on the payment of such sum of money, execute and deliver to the 
United States a full and final discharge for all claims and demands whatsoever on the 
United States, except for such annuities in money or specific articles of property as 
the United States may be bound by any treaty to pay to said Cherokee Nation, and 
except also such moneys and lands, if any, as the United States may hold in trust 
for said Cheroke(>s." 

On the 27th of November, 1851. the Cherokee national council, before the pay- 
ment of any of said money or making any receipt therefor, passed a formal protest 
against the'treaties of December 26, 1835, and the 6th of August, 1846, and the set- 
tlement made under their provisions, using in said protest the following language 
with reference to the expenses of the removal: '•^4 

"Because no allowance is made for the sums taken from the treaty fund for 
removal to the West, although that charge depended upon precisely the same words 
in the treaty of 1835 as did the one year's subsistence; and the Senate unanimously 
decided upon the question submitted to them as arbitrators that the item of sub- 
sistence was not a proper charge upon the Cherokee fund. That had been the 
decision of the Senate about the date of the treaty when that question was specially 

E resented. It was so considered by Mr. Poinsett, Secretary of War, in June, 1838, and 
is decision was sanctioned by act of Congress and an appropriation was made for 
that purpose. But the estimates being too small^by half, the Indian fund was then 
for the first time seized upon." ^ 



10 EASTERN CHEROKEES. 

This protest was transmitted to and received by the Commissioner of Indian Affairs 
during the month of April, 1852. 

Thereafter the said total amount of $914,026.13 was duly paid and distributed to 
and among the Cherokees, and the Cherokees executed to the United States the full 
and final discharge of all claims and demands whatsoever on the United States, as 
requhed by the statute aforesaid. This discharge was in the form following: 

"We, the undersigned Emigrant or Eastern Cherokees, do hereby acknowledge to 
have received from John Drennen, Superintendent of Indian Affau's, the sums oppo- 
site our names, respectively, being in full of all demands under the treaty of sixth of 
August, eighteen hundred and forty-six, according to the principles established in 
the ninth article thereof, and appropriated by Congress per act 30th of September, 
1850, and per act 27th of February, 1851, which reads as follows: 'And the said 
Cherokee Nation shall, on the payment of said sum of money, execute and deliver 
to the United States a full and final discharge for all claims and demands whatso- 
ever on the United States, except for such annuities in money or specific articles of 
property as the United States may be bound by treaty to pay to said Cherokee 
Nation,' and except also such money and lands, if any, as the United States may 
hold in trust for said Cherokees.' " 

IX. At the time of the negotiations for the sale of the lands belonging to the Chero- 
kee Nation, known as the "Cherokee Outlet," in 1891, the Cherokees again renewed 
their contention that their five-million-dollar trust fund had been improperly charged 
with the expense of the removal to the Indian Territory. Accordingly, on the 19th 
of December, 1891, an agreement was entered into between the Cherokee Nation and 
the United States for the sale of the Cherokee Outlet, being the agreement referred 
to and described in the act of March 3, 1893 (27 Stat. L., 640, sec. 10), whereby it 
was provided, among other things, that — 

"Fourth. The United States shall, without delay, render to the Cherokee Nation, 
thi'ough any agent appointed by authority of the national council, a complete account 
of moneys due the Cherokee Nation under any of the treaties ratified in the years 
1897, 1819, 1825, 1828, 1835-36, 1846, 1866, and 1868, and any laws passed by the 
Congress of the United States for the purpose of carrjdng said treaties, or any of them, 
into effect; and upon such accounting, should the Cherokee Nation, by its national 
council, conclude and determine that such accounting is incorrect or unjust, then the 
Cherokee Nation shall have the right within twelve months to enter suit against the 
United States in the Court of Claims, with the right of appeal to the Supreme Court 
of the United States by either party, for any alleged or declared amount of money 
promised but withheld by the United States from the Cherokee Nation, under any 
of said treaties or laws, which may be claimed to be omitted from, or improperly or 
unjustly or illegally adjusted in said accounting; and the Congress of the United 
States shall at its next session, after such case shall be finally decided and certified to 
Congress according to law, appropriate a sufficient sum of money to pay such judg- 
ment to the Cherokee Nation, should judgment be rendered in her favor; or if it 
shall be found upon such accounting that any sum of money has been so withheld, 
the amount shall be duly appropriated by Congress, payable to the Cherokee Nation, 
upon the order of its national council, such appropriation to be made by Congress, 
if then in session, and if not, then at the session immediately following such account- 
ing." (Senate Ex. Doc. No. 56, Fifty-second Congress, first session, 27 Stat., 643.) 

Congress on March 3, 1893 (27 Stat. L., 640), ratified the Cherokee agreement and 
on the same day (27 Stat. L., 643) appropriated five thousand dollars for the employ- 
ment of experts to render a complete account of moneys due the Cherokees as required 
in the fourth subdivision of article two of said agreement. Under this provision 
Messrs. James A. Slade and Joseph T. Bender were appointed commissioners to render 
the account referred to in such agreement. The commissioners made their report, 
bearing date April 28, 1894, whereby, among other things, they reported that "The 
foregoing statement covers, it is believed, every i^oint at issue which can be raised 
under the treaties described in the articles of agreement, and the result of the finding 
is sul:)mitted in the following schedule:" 

"Under the treaty of 1835: Amount paid for removal of Eastern Cherokees to the 
Indian Territory, improperly charged to the treaty fund, $1,111,284.70, with interest 
from June 12, 1838, to date of payment." 

But whether said sum of one million one hundred and eleven thousand two hun- 
dred and eighty-four dollars and seventy cents ($1,111,284.70) was or was not improp- 
erly charged to the treaty fund, and whether interest should be allowed thereon, are 
questions of law upon which the court expresses no opinion. 

^ X. The account as thus stated by Messrs. Slade and Bender was rendered to the 
Cherokee Nation and duly accepted by act of their national council in the manner 
and form provided in the agreement, and no suit has been brought bv the Cherokee 



EASTERN CHEROKEES. 11 

Nation against the United States in the Coui-t of Claims charging that such account 
was incorrect or unjust. 

By the Court. 
Filed April 28, 1902. 
A true copy. 

Test this 29th day of April, 1902. 
[seal.] John Randolph, 

Assistant Clerk Court of Claims. 



Exhibit No. 2. 

Department of the Interior, 

Office of Indian Affairs, 

Washington, July 25, 1906. 
I, C. F. Larrabee, Acting Commissioner of Indian Affairs, do hereby certify that the 
paper hereto attached is a true copy of the original as the same appears of record in this 
Office. 

In testimony whereof I have hereunto subscribed my name and caused the seal of 
this Office to be affixed on the day and year ffi-st above written. 

[seal.] C. F. Larrabee, 

Acting Commissioner. 

ICnow all men by these presents, that this contract, executed and approved in the 
manner prescribed in sections 2103 to 2106, both inclusive, of the Revised Statutes of 
the United States, and in the pursuance of the provisions of section 68 of an act of Con- 
gress entitled "An act to provide for the allotment of lands in the Cherokee Nation and 
the disposition of town sites therein, and for other purposes," approved by the Presi- 
dent of the United States July 1st, 1902, and ratified by the Cherokee people at a popular 
election held August 7th, 1902, is made by and between the Cherokee Nation, acting 
through its principal chief, Thomas M. Buffington, whose occupation is that of the 
principal chief of the Cherokee Nation, and whose residence is in the town of Vinita, 
in the Indian Territory, party of the first part, and the firm of Finkelnburg, Nagle & 
Kirby, composed of Gustav A. Finkelnburg, Charles Nagle, Daniel N. Kirby, Gustav 
F. Decker, Allen C. Orrick, and Arthur B. Shepley, whose residences are in the city 
of St. Louis, State of Missoiu'i, the occupation of each of whom is that of attorney at 
law, and which firm is party of the second part; and Edgar Smith, whose residence is 
in the town of Vinita. Indian Territory, and whose occupation is that of attorney at 
law, and who is party of the third part. 

The purpose for which this contract is made is to secure the ser\aces of the parties 
of the second and third part as attorneys and counsellors at law for the Cherokee 
Nation. The special thing to be done under this contract by the parties of the second 
and third part is to represent said nation as attorneys in the Court of Claims of the 
United States and in the Supreme Court of the United States (if any appeal is taken) 
in the case hereinafter mentioned — that is to say, in the prosecution of the claim of 
the Cherokee Nation against the United States, which claim is commonly known as 
the "Slade-Bender award." and grew out of and described in the agreement between 
the Cherok(!e Nation and the United States for the purchase of what is known as the 
Cherokee Outlet. 

This contract is to run from the 16th day of January, 1903, until the 1st day of Jan- 
uary, 1907. or until said claim is prosecuted to a final determination and the judg- 
ments ol>tained thereundei (if any) are paid, as provided in said act of Congress. 

The rate per centum of fee to be paid to the parties of the second and thii'd part in 
full for their services under this contract shall be as follows: 

Five per centum upon the fh-st million dollars, or part thereof, collected, and two 
and one-half per centum upon the amount collected over and above the said first 
million dollars. The disposition to be made of the money when collected under this 
contract shall l)e as provided in section 68 of the act of Congress aforesaid; the com- 
pensation aforesaid to be paid to the said parties of the second and third part by the 
proper officers of the United States shall be deducted from the amount recovered 
and by the said officers paid direct to the said parties of the second and tliird part. 

The scope and authority for the execution of this contract are set forth in sectiofi 
68 of the said act of Congress, approved by the President and ratified by the Cherokee 
Nation as aforesaid, and no contingent matter or condition, except as herein set forth, 
constitute any part of this contract; and by virtue of and under the authority of said 
act of Congress the party of the first part "has employed, and by these presents doth 



12 



EASTERN CHEROKEES. 



employ, the parties of the second and third part to represent said Cherokee Nation in 
said courts in the city of Washington, District of Columbia, as attorneys of said nation 
in the prosecution to a final determination and payment of the said claim, for and dur- 
ing the time aforesaid, and for the compensation aforesaid, hereby giving to said attor- 
neys full power and authority in the premises to do and perform all things whatso- 
ever that may be necessary and lawful in the prosecuting of the said claim, and for 
the securing payment by the United States of any judgment that may be recovered 
by the said nation against the United States, as provided in said act of Congress, to 
sign and execute all papers that may be required on behalf of said nation, herel^y 
ratifjdng and confirming all the lawful acts of said attorneys done in pursuance of the 
authority of this contract. 

The parties of the second and third part hereby accept the employment herein set 
forth and provided for upon the terms and conditions herein set forth, and they will, 
to the best of their ability, do and perform the services stipulated and recjuired by this 
contract. 

Witness our hands and seals this IGtli day of January, 1903, and executed in triplicate. 

Thomas M. Bukfington. [seal.] 

Principal Chief of the Cherokee Nation. 

FiNKELNBURG, NagEL & KiRBY. [sEAL.] 

Attorneys at Law. 
Edgar Smith. [seal.] 

Attorney at Law. 
United States of America, District of Columbia, ss: 

I, Edward F. Bingham, one of the justices of the supreme court of the District of 
Columbia, which is a court of record, do hereby certifv that the above contract was 
executed before me on the 16th day of Januaiy, 1903, by Thomas M. Buffington, 
principal chief of the Cherokee Nation, and acting for said nation, party of the first 
part, and by Charles Nagel, a member of the firm of Finkelnburg, Nagel & Kirby, 
acting for said firm, and by Edgar Smith, parties of the second and third part, in my 
presence; that the interested parties therein are the Cherokee Nation, which is repre- 
sented by the said Thomas M. Buflington, who is the principal chief of the said nation 
and Finkelnburg, Nagel and Kirby, composed of Gustav A. Finkelnburg, Charles 
Nagel, Daniel N. Kirby, Gustav F. Decker, Allen C. On-ick, and Arthur B. Shepley, 
of St. Louis, Mo., and Edgar Smith, of Vinita, Indian Territory, as stated to me at the 
time; that the parties present were the said Thomas M. Buffington and the said Charles 
Nagel and the said Edgar Smith; that the source and extent of the authority claimed 
by the said contracting parties to make said contract was, and is, se(;tion 68 of the act of 
Congress, the title of which is set forth in said contract, and that the said contract was 
signed and executed, for the purpose and consideration therein stated and set forth 
by the said Thomas M. Buffington and by the said Charles Nagel and by the said 
Edgar Smith, who are personally well known to me and who appeared before me at the 
court-house m the city of Washington, District of Columbia. 

E. F. Bingham, 

o ^ , r 7 T.- . ^ Chief Justice, Supreme Court, T). C. 

Supreme Coiirt of the District of Columbia, ss: 

I John R. Young, clerk of the supreme court of the District of Columbia, hereby 
certify that Edward I. Bingham, whose genuine signature is subscribed to the fore- 
going certificate, was, at the time of signing the same, chief justice of said court duly 
commissioned and qualified. -^ 

Witness my hand and the seal of said court this 16th day of January, 1903. 

t®^^^-] John R. Young, Clerk. 

Department of the Interior, 

Office of Indian Affairs, 

rpv, -.1 ■ ^ X • 1 1 , January 16, 1903. 

1 he withm contract IS hereby approved. 

W. A. Jones, Comvassioner . 
Department op the Interior, 
Approved. = ^"'^""''^ '^' '^'^■ 

[^^^'^■} E. A. Hitchcock, Secretary. 



eastern cherokees, 13 

Exhibit No. 3. 

[Supa^uie Court of the United States, October term, 1905. No. 340.— The United States, appnlkat, vs. 
The Cherokee Nation. No. .347.— The Eastern Cherolcees, appellants, vs. The Unitpoi States and The 
Cherok-e^!' Nation. No. .348.— The Cherokee Nation, appellant, vs. The United States.] 

Appeals from the Court of Claims. 
Reply Brief for the Cherokee Nation. 

The Cherokee Nation is a body politic. As such it was and still is competent to 
prosecute this suit in the name which the persons collectively composing the body 
long since assumed and by which such persons acting collectively have been recognized 
and dealt with for many years past by the United States. 

In an hysterical memorandum prefixed to their main brief, counsel for the Eastern 
Cherokees explain that though in said brief they have referred to the Cherokee Nation 
as a "body politic" "in the sense and to the extent only that it might be regarded as 
a government," nevertheless they "emphatically deny that the Cherokee Nation is a 
body politic, and do not concede that it ever has been a body politic or a body corpo- 
rate recognized as such l)y the United States. 

In both their main and reply brief they indicate a belief that there is a distinction 
appreciable, though subtle, between the Cherokee Nation when considered "as a tribe 
of Indians" and "as a body politic," and on page 4 of the latter brief they say: 

"It is obvious the suit of the Cherokee government appearing under the title 
'Cherokee Nation' should have been brought by the title 'Cherokee tribe' as instructed 
by the jurisdictional act. The tribe furnished the outlet, and the tribe was the prin- 
cipal in that contract of December 19, 1891, while the Cherokee government designated 
'Cherokee Nation' was merely an agency through which the tribe acted. The agent 
is dead. The tribe survived." 

The distinction sought to be drawn and the results which are supposed to follow 
irom such distinction, if it exists, may not be of serious moment, but in order that one 
may not l)e misled either by the confusion of ideas under which counsel appear to 
labor or by the inaccurate statements of fact, it may not be amiss to reply briefly to 
these suggestions. 

The first petition filed in these consolidated cases was filed in the name of the "Cher- 
okee Nation." and asserted that said nation was "acting in its own behalf and in behalf 
of the individuals who are meml)ers and citizens of said nation and interested in the 
subject-matter of this petition," and averred that — 

"The Cherokee Nation, claimant herein, is and since the act of union between the 
Eastern Cherokees and ^^'estern Cherokees, on July 12, 1839, has been a body politic 
recognized and dealt with as such by the United States in all matters affecting the 
rights, interests, and property of the Cherokee Nation or tribe, or the members thereof; 
and is as such the 'Cherokee tribe' mentioned in section 68 of the act of Congress 
aforesaid (July 1, 1902) and authorized thereby to bring this proceeding." 

An early edition of Bouvier defines "body politic" to be — 

"The collective body of a nation under civil government. As the persons who 
compose the body politic so associate themselves, they take collectively the name 
of the people or nation." 

A more recent authority (the Century Dictionary and Cyclopedia) under the word 
"politic," proffers this definition: 

"That (what) constitutes the State; consisting of citizens; as the body politic (that 
is, the whole body of the people as constituting a State)." 

And cites by way of illustration a portion of the preamble of the "Covenant of Plym- 
outh Colony," as follows: 

"We the loyal subjects of * * * King James * * * do by these presents 
solemnly and mutually, in the presence of God and one another, covenant and com- 
bine ourselves into a civil body politic." * * * 

A State is undoubtedly a body politic, and the terms "nation" and "State" are 
frequently employed not only in the law of nations, but in common parlance as im- 
porting the same thing; but it is said that the term "nation" is more strictly synony- 
mous with people than with the term "State," and while a single State may embrace 
different nations or peoples, a single nation may be so divided politically as to con- 
stitute several States. 

As early as 1831 this court decided that the Cherokee people constituted a State 
and that they had been uniformly treated as such "from the settlement of our coun- 
try. The numerous treaties made with them by the United States, recognized them 
as a people capable of maintaining the relations of peace and war, of being responsible 
in their political character for a violation of their engagements, or for any aggression 



14 EASTERN CHEROKEES. 

committed on the citizens of the United States, by any individual of their commu- 
nity. Laws have been enacted in the spirit of these treaties. The acts of our Gov- 
ernment plainly recognize the Cherokee Nation as a State, and the courts are bound 
by those acts." (Cherokee Nation vs. Georgia, 5 Peters 1, 16.) 

Since the rendition of that judgment the right of the Cherokee people to maintain 
an action in the name of the Cherokee Nation would seem to have been put beyond 
dispute. 

When the ancient Cherokee Nation, by an agreement amongst its citizens, approved 
by the United States, separated into two bodies, such bodies so long as they remained 
separate communities possessed severally all the attributes of political sovereignty 
which the ancient nation had theretofore possessed, and were so recognized by the 
United States. 

When in 1839 the Eastern and Western Cherokees became reunited, they declared 
in a solemn act of union seemingly modeled upon the declaration of the Plymouth 
Colony above quoted that — • 

"We, the people composing the Eastern and Western Cherokee nations, in national 
convention assembled, by virtue of our original and unalienable rights, do hereby 
solemnly and mutually agree to form ourselves into one body politic under the style 
and title of the Cherokee Nation. * * * And, also, that all rights and titles to 
public Cherokee land on the east or west of the Mississippi Elver, with all other public 
interests which may have been vested in eitlier branch of the Cherokee family, whether 
inherited from our fathers or derived from any other source, shall henceforward vest 
entire and unimpaired in the Cherokee Nation as constituted by this union." 

Notwithstanding learned counsel for the Eastern Cherokees solemnly deny that any 
such act of union was adopted or, if adopted, that it had any valid force, still such 
act of union has heretofore been recognized by this court (The Cherokee Trust Funds, 
117 U. S., 288, 303-5; United States vs. Old Settlers, 148 U. S., 427, 444), and the 
"Cherokee Nation" thereby created has been repeatedly recognized by the Congress 
(treaty August 6, 1846; treaty July 19, 1866; treaty April 27, 1868; agreement of 
December 19, 1891, for sale of Cherokee Outlet, as ratified and confu-med by act of 
March 3, 1893, and other acts and appropriation laws too numerous to cite). 

It is true that section 68 of the act of July 1, 1902, confers jurisdiction upon the 
Court of Claims to adjudicate any claim which the "Cherokee tribe, or any band 
thereof," may have against the United States, but it is also true that section 1 of said 
act specificaliy declares that — ■ 

"The words 'nation' and 'tribe' shall each be held to refer to the Cherokee Nation 
or tribe of Indians in Indian Territory." 

Whatever criticism might have been justified by the institution of this action under 
the title of "The Cherokee Tribe," it would seem to be certain that no foundation 
for just criticism arises out of the fact that it was instituted under the title of "The 
Cherokee Nation.' 

Again, it is asserted by learned counsel for the Eastern Cherokee (Reply Brief, 
pp. 2-3) "that the 'Cherokee Nation' as a government did not own the Outlet. The 
Outlet was the property of the Cherokee tribe, 'of the whole Cherokee people,' under 
article 1, treaty of 1846." 

This suggestion was laid at rest forever by the decision of this court in the case of 
the Cherokee Trust Funds (117 U. S., "288, at p. 308), where, considering the claim 
of the Western Cherokees to exclusive participation in the proceeds of the sales of 
certain lands in the Cherokee Outlet, under the provisions of the treaty of July 19, 
1866, this com! said: 

"Their claim, however, rests upon no solid foundation. The lands from the sales 
of which the proceeds were derived belonged to the Cherokee Nation as a political 
body and not to its individual members. They were held, it is true, for the common 
benefit of all the Cherokees, but that does not mean that each member had such an 
interest as a tenant in common that he could claim a pro rata proportion of the pro- 
ceeds of sales made of any part of them. He had a right to use parcels of the lands 
thus held by the nation, subject to stich rules as its governing authority might pre- 
scribe, but that right neither prevented nor qualified the legal power of that authority 
to cede the lands and the title of the nation to the United States. Om' Government, 
by its treaties with the Cherokees recognized them as a distinct political community 
and so far independent as to jtistify and require negotiations with them in that char- 
acter. Their treaties of cession must, therefore, be held not only to convey the com- 
mon property of the nation, but to divest the interest therein of each of its members." 

It has been repeatedly urged by counsel for the Eastern Cherokees that judgment 
should not be affirmed in favor of the "Cherokee Nation," because the nation could 
neither receipt for nor distribute the proceeds of any such judgment. Likewise the 
btirden of complaint on the part of other counsel for individual Eastern Cherokees 



EASTERN CHEROKEES. 15 

was that if the judgment of the Court of Claims should be sustained and the nation 
as such permitted to distribute the proceeds thereof, such individual Eastern Chero- 
kees would receive little or no consideration and would probably receive nothing 
as its share. 

And, again, it is suggested that certain provisions of the acts of Congress of June 7, 
1897, and'June 28, 1898 (30 Stats., 62, 83, 502 et seq.), had had the effect of practically 
abolishing the Cherokee government, and that section 19 of the latter act had specifi- 
cally prohibited the "payment of any moneys on any account whatever" "'by the 
United States to any of the tribal governments or any officer thereof." 

Without pausing to consider whether in fact either of the last-mentioned statutes 
has any real bearing upon the matter in hand, it would seem to be sufficient to say that 
the Congress itself by the act of July 1, 1902 (32 Stats., 716), authorizing the Cherokee 
Nation in express terms to institute this suit, distinctly recognized the continued 
existence of the "tribal government of the Cherokee Nation," and with the assent of 
the nation itself provided for its discontinuance only after March 4, 1905 (sec. 63, act 
July 1, 1902, 32 Stats., 716). 

It is true that for some years past the Cherokee Nation has been without tribal courts, 
and by paramount authority its people and their property rights have been subjected 
to the judicial processes of the courts of the United States, but that fact has not served 
to lessen the hold of the nation upon the national property or funds or claims. 

If it be true that by the provisions of the act of June 28, 1898, alluded to, and to the 
terms of v/hich the Cherokee Nation seemingly did not assent, the United States was 
prohibited from making pa>anents to the tribal government or any officer thereof for 
disbursement, that fact would be of no moment here, for the Cherokee Nation is not 
asking the payment of the proceeds of this judgment to itself in its tribal or govern- 
mental capacity or to any of its officers, so that it or he may control the distribution 
thereof. On the contrary, the Cherokee Nation, claimant, recognizing the binding 
force of the various provisions of the jurisdictional act of July 1, 1902, complains of the 
judgment of the Court of Claims upon the sole ground that that court has directed 
the distribution of the proceeds of the judgment, which proceeds would clearly con- 
stitute "monies accruing under the provisions of this act" (sec. 66) in a manner other 
than that distinctly prescribed in said act, to which the legal voters of the Cherokee 
Nation in national election assembled fully assented. 

Both the act of 1898, upon which counsel for the Eastern Cherokees lean, and said 
act of 1902 provide for the distribution of national and per capita funds through the 
Secretary of the Interior. Neither the Cherokee Nation, nor its national council, 
nor any of its executive officers pretend any claim of right to receive, either officially 
or individually, the proceeds of any judgment which may go in favor of the nation, but 
they do assert that such proceeds when payable will constitute common property of the 
nation or tribe, distributable in accordance with the terms of the act of 1902, and not 
otherwise. 

If the act of March 3, 1903, be supposed to authorize any different method of distri- 
bution of common property than that provided for by said act of 1902, then it is to 
such extent at least invalid, for it has never received the assent of the communal 
owners of the property affected by it. 

It is also said that the Cherokee Nation, as such, had prior to July 1, 1902, expressly 
conceded the exclusive right of the Eastern Cherokees to the proceeds of any judgment 
which might be obtained upon the item here in dispute. If this be true in point of 
fact, it does not so appear from the record in this cause, and no proof of such fact was 
offered. 

It is quite true that attorneys for the Eastern Cherokees in their intervening petition 
filed in case No. 23199 (R., 39-40) asserted that the Cherokee national council, by an 
act on December 7, 1900, expressly conceded the exclusive right of the Eastern Chero- 
kees to the moneys in question, but this averment was expressly traversed by the 
Cherokee Nation, which denied the existence of any such act as was described, and 
no proof in support of such averment was offered on behalf of the Eastern Cherokees. 
The fact is that if any such act was passed by the national council it was expressly dis- 
approved by the President of the United States in the exercise of his supervisory 
authority under the act of Congress in such case provided (31 Stats., 1058, 1077). 

If such supposed act of the Cherokee council constitutes the "last will and testa- 
ment" of the Cherokee Nation, to which counsel refer on page 7 of their reply brief, 
it can have no effect upon this controversy, for it has been denied probate by an 
authority possessed of exclusive jurisdiction in the premises. 

Whatever may have been the view of the Cherokee national council in the premises, 
it was clearly subject to the subsequent action of the Cherokee people composing the 
Cherokee Nation, as evidenced by the acceptance of the provisions of the act of July 
1, 1902, which must constitute the rule and measure by which this branch of the con- 
tention before the court must be settled. 



16 EASTERN CHEROKEES. 

By that act and its ratitication both the people of the nation and the Congress of 
the United States provided generally for the institution of the present suit on behalf 
of the former, and specifically indicated the manner in which attorneys on behalf of 
the nation should be employed and how they should be compensated. It is con- 
ceded that the Eastern Cherokees since 1839, by force of numbers, have dominated 
the Cherokee Nation. As the dominant party "in the nation their votes served to 
ratify the agreement of July 1, 1902. It is not denied that the attorneys representing 
the nation have been employed and arrangements have been made for their compen- 
sation in accordance with the provisions of said agreement. Nor is it denied that 
they have rendered some service in the prosecution of the case. So far, such services 
appear to have been, to a degree at least, effective; whether ultimately they will 
appear to have been so must abide the mandate of this court. If the Eastern Chero- 
kees for any reason deemed it desirable that they should be represented doubly before 
the trial and appellate tribunals, first, as members of the nation, and, second, as a 
separate band, they no doubt had the right to so elect and to contract accordingly; 
but exactly why their separate attorneys should seek to raise any question concerning 
the compensation of the attorneys for the nation is not perceived. If the judgment of 
the Court of Claims in favor of the nation should be affirmed, the contract heretofore 
entered into between the nation and its attorneys, formerly approved by the Commis- 
sioner of Indian Affairs and the Secretary of the Interior and hied in the Department 
of the Interior, as required by law, will probably be found to sufficiently protect the 
rights of the parties thereto. No question upon this score was determined by the 
Court of Claims, and in the absence of the contract itself or any copy thereof in the 
record it would seem to be open for consideration by this court. "With respect to 
the allowances of fees and expenses to attorneys otherwise situated, all question was 
reserved by the Court of Claims until the coming in of the mandate of this court, and 
no question has been raised upon the record concerning such action. 

Unless the judgment in favor of the Cherokee Nation by name should be affirmed, 
the question of the right of the attorneys appearing on behalf of the nation to receive 
compensation for services rendered wUl be of but little moment. 

It is suggested, however, that this court should interfere in the matter of the allow- 
ance of fees to the attorneys for the nation because the nation is prosecuting this claim 
in opposition to the vast body of its citizens, viz, the Eastern Cherokees, and that, 
therefore, even in the event of a successful outcome, the proceeds of the judgment 
ought not to l)e reduced by the expenses of the nation in obtaining it because of the 
individual interest of the Eastern Cherokees therein. The fallacy of this objection 
is too obvious to require extended comment. The nation in prosecuting this claim 
is acting on behalf of all of its members, and with the assent of the majority of its mem- 
bers, as evidenced by their ratification of the act of 1902, under which the action 
was brought. Neither the nation nor its attorneys oppose the claim of the Eastern 
Cherokees as component members of the nation to recover under and through the 
latter their proportionate shares of the item in controversy, such shares to be deter- 
mined and distributed as provided in the act of 1902. The sole opposition between 
the nation and the Eastern Cherokees, individually or as a band, grows out of the 
contention of the latter to an exclusive right which is put forth under the provisions 
of the act of March 3, 1903, to which act neither the nation nor its citizens ever 
assented. It does not appear, indeed, that either the nation or any of its component 
elements have ever been made aware of the terms of said act of 1903, npr can it be 
gleaned from the record at hand that the Eastern Cherokees are in fact represented 
by attorneys employed by "the band acting through a committee recognized by 
the Secretary of the Interior" or "by their proper authorities." 

As above stated, the nation, as will appear from its petition, sues in its own behalf 
and "in behalf of the individuals who are members and citizens of said nation" (R., 1), 
and the denial contained in its replication (R., 40) must be read in the light of the 
above averment and held to refer, as was the intention, to the Eastern Cherokees acting 
as a band and not to refer to ttiem in their individual capacities as citizens of the 
nation. 

The futility of the claim of exclusive right put forth in behalf of the Eastern Chero- 
kees generally is demonstrated by the decision and opinion of this court in the case of 
the Old Settlers vs. United States (148 U, S., 427, 471, et seq.), and the utter want of 
foundation for the suggestion of right of participation on the part of these Eastern 
Cherokees and their descendants who never went West, but severed their relations with 
the nation or tribe and became citizens of Georgia, will fully appear from a review of 
the opinion of this court in the case of The Cherokee Trust Funds (117 U. S., 288, 
308-310). 



EASTERN CHEROKEES. 17 

The two cases last cited review all the complicated tangle of treaties and statutes 
pertaining to the relations between the United States and the Cherokee Nation prior 
to the agreement of December 19, 1891, which, together with the act of Congress of 
March 3, 1893, affords solid support for the present contentions on behalf of the nation. 
In the absence of the agreement of 1891 and the act of 1893 the pending claims in their 
present form as presented on behalf of the several claimants could not be maintained in 
favor of any of the claimants, notwithstanding the provisions of the act of July 1, 1902, 
for each of the claimants rests its claim vipon the accounting made and rendered by the 
United States to the Cherokee Nation under the provisions of said act. In the absence 
of the act of 1893 such accounting, even if made, would have been without validity and 
of no binding force. It would seem that the Eastern Cherokees, acting as a separate 
band, could not rely upon the accounting rendered under the act of 1893 and the 
agreement of 1891 therein refeiTed to. and at the same time avoid legal consequences 
which necessarily follow from their plain terms. 

Under the treaty of 1846 the per capita distribution to both Western and Eastern 
Cherokees growing out of the sales of lands east of the Mississippi had been fully and, 
as it was then thought, finally provided for. \Miatever else might be due from the 
United States on such account was communal and belonged to the whole Cherokee peo- 
ple as such. Both the Cherokee people and the United States so understood the matter 
as the agreement of 1891 and the act of 1893 amply evidence. It was the nation that 
assented that a balance was due to it on account of the cession of the lands east, and it 
was to the nation that the United States agreed to account and to pay any balance 
which might ])e found to be due. It was to the nation that the account showing a bal- 
ance in its favor was submitted, and it was the nation, solemnly acting by resolution of 
its national council, that accepted the accovmt as rendered and requested payment 
from the United States of such balance due. It was with the nation that the United 
Stat(>s contracted as per the act of July 1, 1902, and the contract was none the less a 
national contract, because it provided therein that it was to be ratified by the majority 
vote of its qualified individual citizens. 

This case presents complications and grave difliculties only when the contentions 
of the individuals, as opposed to the contention of the body politic, are brought into 
the foreground. So long as the matter is considered solely as between the United 
States and the Cherokee Nation, all questions pertaining both to the right of recovery 
and the method of distribution to ultimate beneiiciaries are devoid of c.)mplexity, for 
elemental principles of law control the one, while the terms of the act of 1902 control 
the other. 

It seems to be unnecessary to say anything further upon the subject of interest. By 
the account which the Interior Department, acting under the authority of Congress, 
as expressed in the act of 1893, rendered to the Cherokee Nation, the claim of the latter 
for interest upon the principal sums was expressly conceded and the principal items 
were declared to be due with interest from speci-fied dates. Balances shown by said 
account rendered l)y the United States to be due to the nation "with interest at the 
rate of five per cent per annum from the various dates," &c., &c., was accepted by 
the latter as correct and payment thereof requested from Congress. The Congress has 
neither repudiated the account as rendered nor denied the right of the nation to re- 
ceive interest as well as principal in payment. 

The act of 1902 conferred jurisdiction upon the Court of Claims without restriction 
in either respect, and the principle which justified this court in giving judgment for 
interest' in the Old Settlers case (ubi supra), when applied to the facts of this case, 
would seem to require the allowance of interest here. 

The learned Assistant Attorney-General concedes that interest was properly al- 
lowed by the accountants upon three of the four items covered by the judgment 
under review, that with respect to such items the accountants had power and au- 
thority to consider the claim for interest, and if found to be well founded to award 
it. But he asserts that the same accountants in regard to the fourth item were with- 
out power to award interest, even though they may be found to have acted rightly 
in finding that the principal sura was due. 

The power of the accountants and of their official superiors under the act of 1903 
was the same with respect to one item as it was with respect to the other. No restric- 
tions or limitations were laid upon them, save that the claims which they were to 
adjust by the account to be rendered were those relating to moneys " due to the 
Cherokee Nation" under certain specified treaties and laws of Congress. If they had 
authority to find for interest in respect of any item they had it in respect to all. 

It has been strenuously contended on behalf of the United States that the "expert 
persons" employed under the act of 1893 to render the accoimt of moneys due the 
Cherokee Nation exceeded the authority with which they were endowed, and in 

S. Doc. 227, 59-2 2 



18 EASTERN CHEROKEES. 

proof of this reference is made to the coiumunicat ion of February 6. 1892, from the Com- 
missioner of Indian Afl'airs to the Secretary of the Interior on the subject of aii appro- 
priation to be made for the purpose of defraying tlie expenses of the accounting (see 
brief on behalf U. S., p. 25), but the learned Assistant Attorney-General seems to have 
entirely overlooked the fact that both the Commissioner of Indian Affairs and the 
Secretary of the Interior approved and adopted their report when it was submitted 
in due course, and neither of those officials appears to have thought either that the 
accountants had exceeded their authority or had acted otherwise than had been con- 
ten) plated at the time of theii' employment. 

The cont(>mporaneous acceptance of the result of their labors without objection on 
the part of the executive officials, whose duty it was to construe and execute the law 
under which the accountants were acting, should have great weight with an}' com-t, 
and the fact that Congi-ess, when the report was l)rought to its attention, did not 
declare it invalid because not rendered in accordance with its prior law on the subject 
would seem to put an end to further contention on that score. 

Edgar Smith, 
Charles Nagel, 
Frederick D. McKenney, 

Attorneys for the CheroJcec Nation. 



Exhibit No. 4. 

Court of Claims. 

The Cherokee Nation, The Eastern Cherokees, 

The Eastern and Emigrant Cherokees. (-»t 93109 9^214 '^321'^ 

vs. f • ^ •^ ) - ) '^ -• 

The United States. J 

I, Archibald Hopkins, chief clerk Court of Claims, hereby certify that the annexed, 
paged from 1 to 3, inclusive, is a true cojDy of the decree as to fees of counsel filed by the 
court May 28, 1906, in the above-entitled causes. 

In testimony whereof I have hereunto set my hand and affixed the seal of said court 
at Wa-shington City this 25th day of July, A. D. 1906. 

[seal.] Archibald Hopkins, 

Chief Clerk Court of Claims. 



[In the Court of Claims. The Cherokee Nation, The Eastern Clierolcees, The Eastern and Emigrant 
Cherokees vs. The United States, Nos. 23199, 23214, 23212.] 

These consolidated causes came on to be further heard upon the motion of the attor- 
neys for the Eastern Cherokees for the modification of the original decree of May 18, 
1905, in accordance with the mandate of the Supreme Coiu't of the United States, here- 
tofore presented: and it appearing to the court that by the said mandate it is pro- 
vided that the second subdivision of the fourth paragraph of the said decree be modified 
so as to direct the distribution of the fund described in item two of the said decree to 
be made to the Eastern Cherokees as individuals, whether east or west of the Missis- 
sippi River, parties to the treaties of 1835-36 and 1846, exclusive of the Old Settlers, 
it is therefore so ordered and decreed. 

And in accordance with said decree as it was directed to be, and is now, modified, 
it is further ordered and decreed that the Secretary of the Interior prepare, or cause to 
be prepared, a list or roll of all persons coming within the said description entitled to 
share in the distribution of said fund; and in preparing the said list or roll of such per- 
sons the Secretary of the Interior shall accept as a basis for the distribution of said fund 
the rolls of 1851, upon which the per capita payment to the Eastern Cherokees was 
made, and make such distribution in pursuance of article 9 of the treaty of 1846. 

And this cause coming on to be further heard upon the application of Robert L. 
Owen and Robert V. Belt, attorneys of record for the Eastern Cherokees, and Mrs. 
Belva A. Lockwood, attorney of record in behalf of certian individual claimants styled 
"Eastern and Emigi-ant Cherokees," for the allowance of compensation to them and 
their associates as attorneys for the respective parties, and the court having considered 
the evidence offered by them and heard the argument of counsel, and being fully 
advised in the premises, and being of the opinion that a sum equal to fifteen per 
centum of the amount due and payable, under the terms of this modified decree, to the 



EASTERN CHEKOKEES. 19 

Eastern Cherokees, to wit, one million one hundred and eleven thousand two hundred 
and eighty-four dollars and seventy cents, with interest from June 12, 1838. to date 
of payment, will be a reasonable compensation to the said Robert L. Owen and Robert 
V. Belt and their associates, attorneys for the Eastern Cherokees, and to Mrs. Belva A. 
Lockwood, attorney for certain individual claimants styled Eastern and Emigrant 
Cherokees, it is, therefore, this 28th day of May, 1906, adjudged, ordered, and decreed 
that out of said sum named in item two of the decree, payable to the Eastern Chero- 
kees, there shall first be deducted an amount equal to fifteen per centum thereof, prin- 
cipal and interest, as the compensation of said attorneys. 

And it further appearing to the court that of this fifteen per centum the sum of 
eighteen thou.?and dollars is a reasonable fee to be paid to the said Mrs. Belva A. Lock- 
wood for Her services rendered in this behalf, it is therefore ordered, adjudged, and 
decreed that out of the said amount there shall be paid to the said Mrs. Belva A. 
Lockwood the said sum of eighteen thousand dollars. 

It is furt her ordered , adjudged , and decreed that the said fifteen per centum, less the 
deduction of the said eighteen thousand dollars, shall be distributed and paid to the 
following persons in the proportion named, to wit: 

To John Vaile, 3 per cent of such gross recovery, less $3, 600 

To Robert V. Belt, If per cent of such gross recovery, less 2, 000 

To Scarritt & Cox, 2 per cent of such gross recovery, less 2, 400 

To James K. Jones, 1 per cent of such gross recovery, less 1, 200 

To Matthew C. Butler, 1^ per cent of such gross recovery, less 1, 800 

To William H . Robeson , 1 J per cent of such gi'oss recovery, less 1, 800 

To Robert L. Owen 4J per cent of such gross recovery, less 5, 200 

It is further ordered, adjudged, and decreed that the payment of the said fifteen per 
centum be made by the Secretary of the Treasury as herein directed immediately 
upon the appropriation by Congress for the payment of this judgment. 

By the Court. 
Filed May 28, 1906. 



Exhibit No. 5. 

In the supreme court of the District of Columbia, in equity. 

FrAKK J. BOUDINOT, COMPL.MNAXT, ) 

V. [Equity, No. 26436. 

Ethan A. Hitchcock et al., defendants.] 

Brief on Behalf of Complainant. 

The solicitors for the complainant believe that it will not be out of place (and may 
somewhat lighten the labors of the court) if they file a brief in support of the rule to 
show cause heretofore issued in this case containing a short statement of the facts 
and of their views of the law applicable to them. 

The printed opinions of the judges of the Court of Claims and of the Chief Justice 
of the Supreme Court of the LTnited States contain such clear and lucid explanations 
of the terms "Cherokee Nation," "Cherokee Tribe," "Eastern Cherokee," and "East- 
em and Emigrant Cherokees" that we do not think it necessary to attempt to explain 
these terms and their meaning further in this brief. It seems to us, too, to be equally 
apparent from an inspection of these papers as well as from a reading of section 68 of 
the act of Congress of July 1,1902, and of the record in the Supreme Court of the 
United States in the cases of the Cherokee Nation against the United States, the 
Eastern Cherokees against the United States, the Eastern and Emigrant Cherokees 
against the United States, and the United States against the Cherokee Nation, a 
printed copy of which has been furnished to your honor, that, for many years prior 
to the 16th day of January, 1903, when the contract between'the Cherokee Nation, 
acting through its principal chief and the firm of Finkelnburg, Nagel & Kirby and 
Edgar Smith, is alleged to have been entered into and approved by the Secretary of 
the Interior, a bitter, hostile, and acrimonious dispute had existed between the East- 
ern Cherokees and the Cherokee Nation as to the true ownership of the fund of $1,111,- 
284.70, with interest; that this dispute was known and recognized as a bona fide dis- 
pute both by Congress and the Court of Claims, and that one of the objects, if not* 
the solo object, of section 68 of the act of July 1,1902, was to give these various hostile 
claimants to said fund a court with ample jurisdiction over them all, in order that 
their hostile claims and pretensions might be finally adjudicated and put an end to. 



20 EASTERN CHEROKEE6. 

We ii'-spt tiiuUy submit, therefore, that it can nm with accuracy be contended that 
the litigation between these rival claimants arose (mly after the hling of the petition 
by the Cherokee Nation in the Court of Claims on the 20th of February, 1903, and 
that they then oc( upied the position of a trustee holding a fund, who, being anxious 
that a court might justly determine the rights of parties interested therein, had bona 
fide entered into a contract of employment of counsel to protect the fund and ascer- 
tain the just rights of cestui que trustents therein and thereto, but rather presents 
the case of a trustee setting up absolute ownership of the fund itself and denying any 
interest therein to anyone else. It this view of the case be the true one, we submit 
that the contract alleged to have been made by the Cherokee Nation is one which it 
and it alone is bound by, and the provision? of which it, and not the Eastern Cherokees 
or the fund awarded to them exchisively, is chargeable with. 

A mere inspection of the brief filed on behalf of the Cherokee Nation by Messrs. 
Charles Nagel, Edgar Smith, and Frederic D. McKenney must satisfy your honor that 
the Cherokee Nation stood all through this contention and always has stood as the 
claimant of this property as a nation, as opposed to the claim of the Eastern Cherokees, 
either as a band or as individuals. 

Bearing in mind that this is an application preliminary in its nature and intended 
merely for the conservation and preservation of the fund until proof can be taken 
where witnesses can be prodticed and compelled to testify under oath and under the 
authority and process of this court, and all the facts and circumstances surrounding 
the execution of this pretended contract may be brought to light, how it was executed, 
where it was executed, and why it was executed, where it was executed, we submit 
that the rule should not now be discharged. 

WAS THIS A CONTRACT MADE BY THE CHEROKEE NATION? 

It is not disptited that Ijut for the peculiar language of section 68 of the act of July 1^ 
1902, the principal chief of the Cherokee Nation had no power to make a contraCg 
unless expressly authorized to do so by an act of the Cherokee council, and that h^ 
could only do so then while within the territorial limits of the Cherokee Nation. It i_ 
conceded, or rather is shown by the cdntraet itself, that it purports to have been exe 
cuted by Thomas M. Bulfington, principal chief of the Cherokee Nation, in the city o^ 
Washington, where it was signed by all parties thereto and approved by the Commis- 
sioner of Indian Affairs and the Secretary of the Interior, all in one day. It is con- 
tended that the power to perform this act l)y the principal chief instead of in accord- 
ance with the immemorial custom of the Cherokee Nation was intended (o be conferred 
upon him by Congress, and his caprice and whim was intended to be substituted for 
such immemorial usage and custom because, tucked away in the last few lines of section 
68, are the words "the said nation acting through its principal chief." Your honor 
will perceive that Congress does not say that the Cherokee Nation shall so act "by" its 
principal chief, but "throtigh" its principal chief, and we respectfully submit that it 
is fair to argue that Congress, knowing the meaning of words, when it used the word 
"through" meant that after the nation had acted in council on the subject-matter the 
principal chief was to carry out their orders and formally execute the contract author- 
ized by it in council, whereas if Congress had desired to deprive the nation, as such, 
of all power or discretion in the matter and to invest its principal chief with arbitrary, 
unlimited, despotic, and uncontrolled power, it would not have used the word 
"through" nor have left its intention in doul)t. 

But let us concede, for the sake of the argument, that the contract was duly executed 
and was binding tipon the parties to it, what was its subject-matter? We submit that 
it cotild only be a subject-matter which the Cherokee Nation owned. 

The court has decided that the Cherokee Nation did not own the fund in controversy, 
but that it belonged to the Eastern Cherokees, whether east or west of the Mississippi, 
excltisive of the "Old Settlers," and was to be distribtited to them, not by the Cherokee 
Nation, btit by the Secretary of the Interior, as individttals. 

We respectfully submit, it is too narrow and strict a construction upon which to 
base the payment of fees for hostile action on the part of counsel upon the mere claim 
that somewhere in the judgment the court has said that it is in favor of the "Cherokee 
Nation," and neither the Cherokee Nation, as such, nor any individual, as such, is 
entitled to a dollar of beneficial interest in said judgment. The judgment is for the 
benefit of any Eastern Cherokee, as stich, no matter whether he lives east or west of 
the Mississippi River, exclusive of the "Old Settlers," and without regard to the 
"Cherokee Nation," which under no circumstances is permitted to touch or handle 
a penny. 

This is a court of equity administering justice, and while it may not have jurisdiction 
to control the judgment of the Secretary of the Interior as to the value of services 
alleged to have been rendered, it has unqtiestionably jurisdiction to say both whether 



EASTERN CHEBOKEES. 21 

the contract has ever been entered into and to declare the subject-matter to which it 
refers. In this case it is conceded, or if not conceded, it is proved for the purposes of 
a hearing of this character, that on tire 20th of April, 1901, the Eastern Oherokees, 
having organized themselves, made a contract with counsel for the protection of their 
interests in this fund. If the injunction in this case be now granted and the issues 
made up, it will unquestionably be proved that this contract was offered to the Secre- 
tary of the Interior for his approval and was rejected, and it will be further unques- 
tionably established that, notwithstanding the failure and refusal of the Secretary of 
the Interior to approve this contract. Congress itself, l)y the act of March 3, 1903, did 
so, and went further and authorized the Court of Claims, in its judgment, to fix the 
compensation of counsel in accordance with the ideas expressed in that contract. It 
is already conceded in this case that the Court of Claims has acted in obedience to the 
provisions of the act of March 3, 1903, has allowed fifteen per cent of the total amount 
recovered to the counsel named in or provided for by the terms of said contract with 
the Eastern Cherokees, and that the sum of 1740,555.31 has been paid by the Eastern 
Cherokee Indians out of this identical fund to their counsel for securing it to them 
and for successfully resisting the efforts of the "Cherokee Nation" to wrest it from 
them and deprive them of it. 

No one can say that this is a just claim against the Eastern Cherokees or the fund 
belonging to them. No one pretends that Finkelnburg, Nagel & Kirby and Edgar 
Smith ever did them a dollar's worth of service or expended a moment of time upon 
their behalf. The original claim itself, out of which the controversy arose, was the 
child of an unjust retention by the Government of money belonging to the Eastern 
Cherokees and was a continual and continuing source of irritation and friction between 
the Government and the Indians, and the Government at length yielded to the Indian 
on every point and directed its courts to do him justice. It is but fair to say that if 
this fund is thus unjustly deducted from the money belonging to the Eastern Cherokees 
they will clamor, and successfully clamor, against such unjust treatment imtil the 
Government again will have to yield to them and pay this money twice. 

We therefore respectfully submit that it is proper, prudent, and just for the court 
to stay this payment, at least at this stage of the cause, until all the circumstances and 
facts may l)e thoroughly investigated and the Government, as well as the Eastern 
Cherokees, l)e fully protected. Such action on the part of the court can do no material 
injury to any one, while a different course will but precipitate dissatisfaction, litigation, 
and possibly civil strife. 

We respectfully submit that the injunction should be granted. 

Charles Poe, 
Samuel A. Putman, 

Solicitors for Coin plainant. 



Exhibit No. 6. 



Supreme court of the District of Columbia. 

Equity, No. 26436. 



FrAXK J. BOUDINOT, COMPLAIXANT, 

VS. 

Ethan A. HrrcHcocK, Secretary of the Interior 
of the United States, and Charles H. Treat, Ti-easurer 
of the United States, defendants. 



United States of America, District of Columbia, ss: 

Be it remembered, that in the supreme court of the District of Columbia, at the city 
of Washington, in said District, at the times hereinafter mentioned, the following 
papers were filed and proceedings had in the above-entitled cause, to wit: 

Bill. 

[Filed July 18, 1906, in the supreme court of the District of Columbia, holding an 

equity court.] 

[Frank J. Boudinot,complainant, vs. Ethan A. Hitchcock, Secretary of the Interior of the United States, 
and Charles H. Treat, Treasurer of the United States, defendants. Equity No. 264.36.] 

To the honorable the judges of the supreme court of the District of Columbia. 
The lull of complaint of Frank J. Boudinot respectfully represents: 
1. That he is a citizen of the United States and a resident of the Indian Territory, 
and exhibits this, his bill of complaint, in his own right as an Eastern Cherokee Indian, 
on his own behalf as well as on behalf of such other Eastern Cherokee Indians as may 



22 eastp:rn cherokees. 

come in and be made parties complainant to this bill and contribute to the costs 
and expenses of this suit. 

2. That the defendant, Ethan A. Hitchcock, is a citizen of the United States, and 
is sued as the Secretary of the Interior thereof, and the defendant, Charles H. Treat, 
is a citizen of the United States, and is sued as the Treasurer thereof. 

3. That heretofore^ to wit, on or about May 18, 1905, the Court of Claims, by its judg- 
ment or findings of that date in a cause therein depending, in which the Cherokee 
Nation and others were claimants and the United States and others were defendants, 
among other things found that the sum of $1,111,284.70, with interest thereon from the 
12th day of June, A. D. 1838, to date of payment, less such counsel fees as may be 
chargeable against the same under the provisions of the contract with the Cherokee 
Nation of January 16, 1903, and such other coimsel fees and expenses as may be here- 
after allowed by this court under the provisions of the act of March 3, 1903, shall be 
paid to the Secretary of the Interior, to be by him received and held for the uses and 
purposes following: 

First. To pay the costs and expenses incident to ascertaining and identifying the 
persons entitled to participate in the distrilnition thereof and the cost of making such 
distriliution. 

Second. The remainder to be distributed directly to the Eastern and Western Chero- 
kee who were parties either to the treaty of New Echota, as proclaimed May 23, 1836, 
or the treaty of Washington, of August 6, 1846, as individuals, whether east or west of 
the Mississippi River, or to the legal representatives of such individuals. 

And your complainant further alleges that on the 30th day of April, 1906, by its 
judgment the Supreme Court of the United States affirmed said findings of the Court 
of Claims, with the modification so as to direct the distribution of said fund to be made 
to the Eastern Cherokees as individuals, whether east or west of the Mississippi, parties 
to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers. 

4. And your complainant further alleges that he is an Eastern Cherokee Indian 
and is entitled as such to his distributive share of the fund referred to in paragraph 
three of this his bill of complaint. 

5. Your complainant further alleges that he is informed and believes and therefore 
charges that the said Ethan A. Hitchcock, Secretary of the Interior of the United 
States, either hath drawn or is alx-ut to draw his warrant upon the Treasury of the 
United States for the payment of certain counsel fees alleged to be chargeable against 
said fund under and by virtue of said alleged and pretended contract referred to in 
said findings of the Court of Claims as the •"Contract with the Cherokee Nation of 
January 16, 1903," and that the said Charles H. Treat, Treasurer of the United States, is 
about t(i honor said draft in favor of the parties iiamed in said alleged and pretended 
contract of March 16, 1903, to wit, the firm of Finkleberg, Nagh^ & Kirby, of St. Louis, 
Mo., and Edgar Smith, of Vinita, Indian Territory, all of whom are nonresidents of 
the District of Columbia and beyond the jurisdiction and process of this honorable 
court. 

6. And your complainant further alleges that said pretended contract of Jany. 16, 
1903, was never in truth and in fact executed by the Cherokee Nation, although your 
complainant is informed and believes that a contract alleged to have Ijeen executed 
by said Cherokee Nation with said firm of Finklel)erg, Nagle & Kirby and said Edgar 
Siiiith was brought here to Washington, presented to the said defendant, Ethan A. 
Hitchcock, Secretary of the Interior, and by him approved, and your complainant 
further alleges that his information with reference to said alleged and j)retended con- 
tract is that one Thomas M. Buffington, who was the principal t'hief of the Cherokee 
Nation, without authority from it to enter into said contract, and against the public 
vote of said nation in council assembled, undertook to sign it as the act of said Nation, 
and brought it on to Washington as said nation's contract, in direct violation of his 
instructions and without the knowledge of said Ch<^rokee Nation. And yoiu- com- 
plainant alleges that the principal chief of the Cherokee Nation had no" authority 
under its law to execute any contract in its name unless expressly authorized to do 
so at a public meeting, and that in this particular instance this alleged contract was 
presented to the nation in open council and was rejected by a vote of 40 against its 
execution to but 2 in its favor, and your complainant alleges that the said pretended 
contract lietween the said Cherokee Nation and said Finkleberg, Nagle & Kirby and 
Edgar Smith was an unlawful contract and did not bind the Cherokee Nation, and 
certainly did not bind the Eastern Cheiokees, who, -within the past week, in obe- 
dience to the judgment of the Courl of Claims, paid about $745,000 as counsel fees 
for the collection of this identical claim to lawyers of their own selection, whose 
claim for fees they did not dispute nor desire to dispute. 

7. And your complainant iurther alleges that the amount of the fees intended to 
be paid by saiel defendants to said Finklel)erg. Nagle & Kirby and Edgar Smith is. as 
he is informeel and l)elieves, and therefore charges, upwards of $150,000, anel that 



EASTERN CHEROKEES. 23 

its payment by reason of anything contained in said pretended contract vv-ould reduce 
the amount of his distributive share and the amount of the distributive share of each 
one of the Eastern Cherokee Indians by his or her proportionate share of said sum 
of $150,000. so about to be wrongfully and improperly paid to said Finkleberg, 
Nagle & Kirby and said Edgar Smith. 

8. And your complainant fm-ther alleges that he is informed and believes, and 
therefore charges, that there are several thousand Eastern Cherokees entitled to share 
in the distribution of the fund now in the hands of the Secretary of the Interior for 
distribution, and but for the interference of this honorable com't by its writ of injunc- 
tion to restrain the defendants from their intended payment of said sum, it would be 
necessary for each one of them to bring a separate suit for the recovery of his or her 
share of said intended payment of §150,000. 

In tender consideration of the premises and to the end that the said defendant, 
Ethan A. Hitchcock, Secretary of the Interior, be enjoined and strictly prohibited 
from drawing his draft upon the Treasurer of the United States or otherwise authoriz- 
ing the Treasurer of the United States to pay any sum under said alleged contract of 
January 16, 1903, and enjoining and strictly prohibiting the defendant, Charles H. 
Treat, Treasurer of the United States, from honoring said draft or in any other way 
paying any sum on account of said alleged contract of January 16, 1903, and that your 
complainant may have such other and further relief as his case may require, may it 
please your honors to grant unto your complainant the writ of subpoena directed 
against the defendants, demanding them and each of them to be and appear in this 
honorable court on some certain clay to be named therein to answer the premises, 
though not under oath, answer under oath being hereby expressly waived, and to 
abide by and perform such order or decree as may be therein passed, and the writ of 
injunction enjoining and strictly prohibiting the said defendant, Ethan A. Hitchcock, 
from drawing his draft or otherwise authorizing the payment of said fund, as prayed 
in said bill, and enjoining and strictly prohibiting the said Charles H. Treat, Treasm-er 
as aforesaid, from honoring any such draft or in any other way paying any sum on 
account of said alleged contract of January 16, 1903. 

And complainant will ever pray. 

Frank J. Boudinot, 

Complainant. 
Charles Poe, 
Samuel A. Putnam, 

Solicitors for Com p lainant . 
Dlstkict of Columbia, City of Washington, ss: 

I hereby certify that on this 18th day of July, A. D. 1906, before the subscriber, a 
notary public, duly commissioned and qualified, personally appeared the complain- 
ant, Frank J. Boudinot, and did solemnly swear that he hath read the bill by him 
subscribed, and knows the contents thereof, and that the facts therein stated upon his 
personal knowledge are true, and those stated upon information he believes to be true. 

Witness my hand and seal notarial. 

[notarial seal.] M. S. W. Day, Notary Pxblic. 

Rule to Show Cause. 
[Filed July 18, 1906, in the supreme court of the District of Columbia.] 
Frank J. Boudinot, complainant, 1 

^ A Tj against Equity, No. 26436. 

Ethan A. Hitchcock, Secretary of the Interior, ^ •" 
et al., defendants. J 

Upon reading and considering the bill of complaint filed in the above styled cause, 
it is this 18th day of July, 1906, ordered by the court that the writs of injunction, as 
in said bill of complaint prayed, be granted unless cause to the contrary thereof be 
shown on or Ix'fore the 30th day of July, A. D. 1906, provided a copy of this order be 
served upon the defendants on or before the 23d day of July, A. D. 1906. 

Ashley M. Gould, Associate Justice. 

marshal's return. 

Served copy of the within rule to show cause on Ethan A. Hitchcock, Secy, of the 
Interior, by service on Thomas Ryan, Acting Secy., and Charles H. Treat, Treasurer of 
the United States, personally. 

July 18, 1906. 

AuLicK Palmer, Marshal. 



24 EASTERN CHEROKEES, 

Affidavit op John F. Wilson in Support of Bill. 

[Filed July 30, 1906.] 

United States op America, 

Indian Territory, Northern Judicial District, ss: 

I hereby certify that on this 25th clay of July, 190G, before the subscriber, a notary 
public, duly commissioned and qualified, personally appeared John F. Wilson, and 
being duly sworn, on his oath states: 

That he was a member of the council branch of the national council during the regu- 
lar session of the national council of 1902 and remembers that a resolution was offered 
authorizing the principal chief of the Cherokee Nation to employ counsel to prosecute 
the claim of the said nation under the Slade and Bender agreement against the Govern- 
ment of the United States and that said resolution was put to a vote and was rejected 
by the council branch of the national council. 

John F. Wilson. 

Subscribed and sworn to before me on this the 25th day of July, 1900. 
[Notarial seal.] J. C. Dannenberg, 

Notary Public. 
My commission expires Jan. 29, 1910. 



Affidavit of W. T. Harnage in Support op Bill. 

[Filed July 30, 190(3.] 

United States of America, 

Indian Territory, Northern ,hidicial District, .ss.- 
I hereby cert ify that on this the 25th day of July, 1906, before the subscriber, a notary 
public, duly commissioned and ciualified, personally appeared William T. Harnage, 
and being sworn, says on oath: That he was a member of the senate of the Cherokee 
Nation during the council of 1902 and was present when a resolution was offered in the 
council branch of the national council to authorize Thomas M. BufHngton, then the 
principal chief of said nation, to make a contract of employment of counsel to prosecute 
the claims of said nation against the Government of the United States; heard said reso- 
lution put to a vote and rejected. 

W. T. Harnage. 

Subscribed and sworn to before me on this the 25th day of July. 1906. 
[Notarial seal.] J. C. Dannenberg, 

Notai-y Public. 
My commission expires Jan. 29, 1910. 



Affidavits Fortifying Bill op Complaint. 

[Filed July 30, 1906, in the supreme court of the District of Columljia, holding an 

equity court.] 

Frank J. Boudinot ] 

against lEquity, No. 2643(). 

Ethan A. Hitchcock, Secretary op the Interior, et al. J 

The undersigned on oath state that they are and each of them is an Eastern Cherokee 
and entitled as such to share in the distribution of the fund in these proceedings 
mentioned; that they are desirous that the writ of injunction in the bill of complaint 
herein prayed for shall be gi'anted restraining the defendants herein from paying any 
money out of said fund on account of the pretended contract alleged to have been 
made by the Cherokee Nation through its principal chief, Thomas M. Bufhngton, 
with Finkleberg, Nagle & Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian 
Territory. We and each of us further swear that the only counsel employed and con- 
tracted with by the Eastern Cherokees in the matter of the selection of their claim 
against the United States Govermnent for $1,111,284.70, with interest, were John 
Waile, Robert L. Owen, and their assistants and associates, all of whom have been 
fully paid therefor, as directed by the judgment of the Court of Claims. 



EASTERN CHER0KEP:S. 



25 



Affiants further say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to restrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of any money under said 
pretended contract. 

Ben Johnson, Tahlequah, I. T. 

Walter R. Gourd, Moodys, I. T. 

Wilson (his x mark) Hornet, Moodys, I. T. 



Witness to mark: 
John Shay. 
R. B. Bean. 

Witness to mark: Ben Johnson. 
Attest: R. B. Bean. 



Witness to mark : 
Paul Glass. 
J. J. Hicks. 



Witness to mark: 
Paltl Glass. 
Ben Johnson. 



James (his x mark) Smith, Moodys, I. T. 



Steve Vann, Moodys, I. T. 
J. B. Smith, Moodys, I. T. 
J. J. Hicks, Moodys, I. T. 
Nelson Hicks, Moodys, I. T. 
Jeff Hick. 
Paul Glass. 
Adam Swimmer. 
Dick (his x mark) Agent. 



R. B. Bean, Tahlequah. 

Jesse R. Gourd, Moody, I. T. 

Grant (his x mark) Smoke, Moody, I. T. 



Wm. Smith, J^Ioody, I. T. 
Isaac (his x mark) Tucker. 



Witness to mark: 
Paul Glass. 
Adam Swimmer. 

Johnson Manning. 

John W. Sharp. 

Richard M. Wolfe. 

Jack Dew. 

Ned Dreadfulwater. 

Luke Blue Bird. 

Tom Smith. 

United States of America, 

Northern District, Indian Territory. 

The foregoing twenty-four named persons, Cherokee Indians by blood, citizens of the 
Cherokee Nation, and members of the Eastern Cherokees. to me personally well known 
to be such, subscribed and sworn to the forego'ng instrument before me, Robert B. 
Bean, a notary public within and for the northern judicial district, Indian Temtory, 
duly commissioned and acting as such at Tahlequah, Indian- Territory, this 26th day 
of July, A. D. 1906. 

[Notarial seal.] Robert B. Bean, 

Notary Public. 

My commission expires May 13th, 1910. 



[Filed July 30, 1906.] 

Washington, D. C, July 20, 1906. 
Dear Sir: Edgar Smith and his associates are claiming $150,000 Eastern Cherokee 
money on account of the contract Buffington made in January, 1903 . The Eastern Chero- 
kees have paid §745,000 under the Vaile contract, which was to be in full payment of all 
services and expenses of whatever kind or character performed and incun-ed in the 
collection of the Eastern Cherokee money. As you know, Smith et al. pretended to 
represent the Cherokee Nation under that contract and opposed the Eastern Chero- 
kees all along the line all the time. 



26 EASTERN CHEEOKEES. 

I have commenced a suit to enjoin the Secretary and the U. S. Treasm-er from paying 
this claim out of our money. The case is set for July 30th. 

Enclosed with this letter you will find a blank form of affidavit. I urge upon you 
to get as many signatures to this paper as possible and return it to me so that it will be 
sure to reach me by the 29th of this month. The signatures must be secured before a 
notary public, of course. In transmitting the signed jaaper I wish you would write me 
a letter to accompany it. 

Very truly, your friend, Frank J. Boudinot. 



[Filed July 30, 1906, in the supreme court of the District of Columbia, holding an 

equity court.] 

Frank J. Boudinot 1 

against [ Equity, No. 25436. 

Ethan A. Hitchcock, Secretary of the Interior, et al.J 

The undersigned on oath state that they are and each of them is an Eastern Cherokee 
and entitled as such to share in the distribution of the fund in these proceedings men- 
tioned, that they are desirous that the writ of injunction in the bill of complaint 
herein prayed for shall be granted, restraining the defendants herein from paying any 
money out of said fund on account of the pretended contract alleged to have been 
made by the Cherokee Nation through its principal chief, Thomas M. Buffington, with 
Finkleberg, Nagle & Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian 
Territoiy. We and each of us further swear that the only counsel employed and con- 
tracted with ))y the Eastern Cherokees in the matter of the collection of their claim 
against the United States Government for •?! ,111 .284.70, with interest, were John Vaile, 
Robert L. Owen, and their assistai)ts and associates, all of whom have been fully paid 
therefor, as directed by the judgment of the Court of Claims. 

Affiants further say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to i-estrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of any money under said 
pretended contract. 

John Muskrat. 

David (his x mark) Muskrat. 

Witness to mark : 
J. F. Mason. 
L. M. Alexander. 

Subscribed and sworn to before me this the 24 day of July, 1906. 

R. Y. Nance, [seal.] 



My commission expires May 22, 1910. 



Notary Public. 

David (his x mark) Muskrat. 
William (his x mark) Hamanstriker. 
Jesse (his x mark) Duck. 
Jackson (his x mark) Dew. 
YosE (his X mark) Duck. 
John (his x mark) Fogg. 
John Muskrat. 



[Filed July 30, 190(>, in the supreme court of the District of Columbia, holding an 

equity court.] 

Frank J. Boudinot | 

against [Equity, No. 26436. 

Ethan A. Hitchcock, Secretary of the Interior, et al.J 

The undersigned on oath state that they are and each of them is an Eastern Cherokee 
and entitled as such to share in the distribution of the fund in these proceedings men- 
tioned; that they are desirous that the writ of injunction in the bill of complaint 
herein prayed for shall be gi-anted restraining the defendants herein from paying any 
money out of said fund on account of the pretended contract alleged to have been 
made by the Cherokee Nation through its principal chief, Thomas M. Buffintgon, with 
Finkleberg, Nagle & Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian 



EASTERN CHEROKEES. 27 

Territory. We and each of us further swear that the only counsel employed and 
contracted with by the Eastern Cherokees in the matter of the collection of their 
claim against the United States Government for $1,111,284.70, with interest, were 
John Vaile, R-obert L. Owen, and their assistants and associates, all of whom have 
been fully paid therefor, as directed by the judgment of the Court of Claims. 

Affiants further say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to restrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of any money under said 
pretended contract. 

1. Lew,[S R. Nash. 

2. Ida V. Nash. 

3. Mrs. Mary J. Ross. 

4. W. D. Ross. 

5. Hubbard Ross. 

6. Percy Hicks. 

7. John Vickery. 

8. Walter Scott. 

9. John Runnels. 

10. Reddy a. Reese. 

11. Martin Miller. 

12. Jack Walker. 

13. Henry C. Meigs. 

14. Jno. Stranes. 

15. C. L. Washhound. 

16. Mrs. Eliza Andre. 

17. Mrs. F. R. Kneeland. 

18. Mrs. Allie R. Howard. 

19. Miss Belle Ross. 

20. Will Vance. 

21. John Vance. 

22. Ida Vance. 

23. Mortar Vance. 

24. R. E. Butler. 

25. Alice Ditter. 

26. Mrs. Belle Brown. 

27. Mary Ann Perkins. 

Subscribed and sworn to before me this 24th day July, 1906. 

[Notarial seal.] Henry Eiffert, Notary Public. 

My com. expires Oct. 16th, 1907. 

United States of America, 

Indian Territory, ^ccstern judicial district, ss: 

Be it remembered, that on this day came before me, the undersigned, a notary public 
within and for the western judicial district of the Indian Territory aforesaid, duly com- 
missioned and acting as such, the above-named persons and signed the above ailidavit 
in my presence and stated that they understood the nature, contents, an<l effect there- 
of and approved of the same; that they are personally well known to me, that I know 
of my own knowledge that they are reputable persons and entitled to full faith and 
credit, and I do so certify. 

Witness my hand seal as such notary public, on this 24th day of July, 1906. 

[notarial seal.] Henry Eiffert, Notary Public. 

My commission expires October 16th, 1907. 



[Filed July 30, 1906.] 

Washingtox, D. C, July 20, 1906. 
! Dear Sir: Edgar Smith and his associates are claiming $150,000 Eastern Cherokee 
money on account of the contract Buffington made in January, 1903. The Eastern 
Cherokees have paid $745,000 under the Vaile contract, which was to be full payment 
of all services and expenses of whatever kind or character performed and incurred in 
the collection of the Eastern Cherokee money. As you know, Smith et al, pretended to 
represent the Cherokee Nation under that contract, and opposed the Eastern Cherokees 
all along the line all the time. 



28 EASTERN CHEROKEES. 

I have commenced a suit to enjoin the Secretary and the U. S. Treasurer from paying 
this claim out of our money. The case is set for July 30th. 

Enclosed with this letter you will find a blank form of affidavit; I urge upon you to 
get as many signatures to this paper as possible, and return it to me so that it will be 
sure to reach me by the 29th of this month. The signatures must be secured before a 
notary public of course. In transmitting the signed paper, I wish you would write me 
a letter to accompany it. 

Very truly, your friend, Frank J. Boidinot. 

[In the supreme court of the District of Columbia, holding an equity court.] 

Frank J. Boudinot ) 

against Equity, No. 26436. 

Ethan A. Hitchcock, Secretary op the Interior, et al.J 

The undersigned on oath state that they are and each of them is an Eastern Cherokee 
and entitled as such to share in the distribution of the fund in these proceedings men- 
tioned; that they are desirous that the writ of injunction in the bill of complaint herein 
prayed for shall be granted restraining the defendants herein from paying any money 
out of said fund on account of the pretended contract alleged to have been made by 
the Cherokee Nation through its principal chief, Thomas M. Buffington, with Finkle- 
berg, Nagle & Kirljy, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian Territory. 
We and each of us further swear that the only counsel employed and contracted with 
by the Eastern Cherokees in the matter of the collection of their claim against the 
United States Government for $1,111,284.70 with interest, were John Vaile, Robert L. 
Owen, and their assistants and associates, all of whom have been fully paid therefor, as 
directed by the judgment of the Court of Claims. 

Affiants further say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to restrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of anv money under said 
pretended contract. 

1. Thomas W. Foreman, Tahlequah, I. T. 

2. Cherokee Foreman, Tahlequah, I. T. 

3. Thomas (his x mark) White. Stilwell, I. T. 
Attest X mark: 

W. H. Parkison. 
Jack Wafford. 

4. Jack Wafford, Moody, I. T. 

5. Samuel Manur, Tahlequah, I. T. 

6. William H. Balentixe, Sr., Tahle(iuah, I. T. 

7. Tom Fikley, Tahlequah, 1. T. 

8. Andy Nave, Tahlequah, I. T. 

9. Johnson Rorris, Jr., Tahlequah, I. T. 

10. Arch Spears, Tahlequah, I. T. 

11. William T. HarnaCxE, Tahlequah, I. T. 

12. William P. Beck, Tahlequah, I. T. 

13. J. Henry Covel, Tahlequah, I. T. 

14. Ridge Paschal, Tahlequah, I. T. 

15. George Smith, Tahlequah, I. T. 

16. Dennis B. McNair, Tahlequah, I. T. 

17. John R. Price. Tahlequah, I. T. 

18. Ned Gritts, Tahlequah, I. T. 

19. Ned McNair, Tahlequah, I. T. 

20. Thomas F. Morris, Tahlequah, I. T. 

21. J. Butler Busbyhed, Tahlequah, I. T. 

United States of America, 

Indian Territory, Northern District, ss: 

The foregoing twenty-one (21) named persons, Cherokee Indians by blood, citizens 
of the Cherokee Indian Nation, to me personally well known as such and as Eastern 
Cherokees, subscribed and sworn to the foregoing instrument l>efore me, William F. 
Rasmus, a notary public within and for this judicial district and Territory aforenamed, 
duly commissioned and acting as such, at Tahlequah, Ind. Terry., this the 25th da^" 
of July, A. D. 1906. 

[notarial seal.] Wm. F. Rasmus, 

Xotary Public. 

(My commission expires April 12th, A.D. 1909 (4th term).) 



EASTERN CHEROKEES. 29 

[Filed Julj' 30, 1906, in the supreme court of the District of Columbia, holding an 

equity court.] 

Frank J. Boudixot 1 

Ethan- A. HitcSSS^ Secretary oFf^^^^^y' ^''- ^G-i^G. 
the Interior, et al. ) 

The undersigned, on oath, state that they ai-e and each of them is an Eastern Chero- 
kee and entitled as such to share in the distribution of the fund in these proceedings 
mentioned; that they are desirous that the writ of injunction in the bill of complaint 
herein prayed for shall be granted re.<t raining the defendants therein from paying any 
money out of said fund on account of the pretended contract alleged to have been 
made by the Cherokee Nation through its principal chief, Thomas M. Buffington, 
with Finkleberg, Xagle & Kirby, of St. Louis, Missouri, and Edgar Smith, of Vinita, 
Indian Territory. 

We, and each of us, further swear that the only counsel employed and contracted 
with by the Eastern Cherokees in the matter of the collection of their claim against 
the United States Government for §1,111.284.70, with interest, were John Vaile, 
Robert L. Owen, and their assistants and associates, all of whom have been fully paid 
therefor, as directed by the judgment of the Court of Claims. 

Affiants further say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to restrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of any money under said 
pretended contrac-t. 

Daniel Ticker. 

Sam (his x mark) Bread. 

Witness to mark : 
W. W. Ross. 
A. D. Mothershead. 

Subscribed and sworn to before me this 24th day of July, 1906. 

[notarial seal.] R. C. Brewer, Notary Pubhc. 

My commission expires Oct. 14, 1907. 

P. H. Holland. 

Jos. R. Sequichie, 

Member of Council. 

AVilliam W. Ross, 
Member of Emigrant Council of Cherokees. 

Howard Roberts. 

W. H. Rogers. 

Charles Buffington, 

Subscribed and sworn to before me this 25 day of July, 1906. 

My com. expires May 7, 1910. 

[notarial seal.] Howard Roberts, N. P. 



[The Ochelata Grist Mill. Highest prices for wheat, corn, oats, andkaffir corn. 
John C. Duncan, proprietor.] 

Ochelata, Ind. Ter., July 25th, 1906. 
Mr. Frank J. Boudinot, 

Washington, D. C: 

Herewith I hand you affidavit which explains itself. I regret very much to say that 
this matter came to my notice too late to do any more and get it to you in time to be 
made a part of your proceedings. 

Do you not think it prudent to, if possible, postpone this case a week of two and give 
me time to take a few of such affidavits from some of the other Eastern Cherokees? 
If you can do so, I can furnish you all you need, anywhere from 500 to 5,000 of them. 

It strikes us all here as an absurdity to think that as smart men as Edgar Smith and 
his associate members of that firm would attempt to claim a fee out of the $1,111,284.70 
claim. It is possible, however, that if Mr. Buffington was recognized at all as capable 
of contracting that Smith et al. might claim a fee out of the other three items mentioned 
in the Slade-Bender award, which would probably amount to one-half of the amount of 
their fee. Those items, if you remember their status, rightfully belong to the Cherokee 
Nation and not the Eastern Cherokees. It seems to be a hard matter for our Govern- 



30 EASTERN CHEROKEES 

ment officials to distinguish the difference between the Eastern or Emigrant Cherokees 
and the Cherokee Nation. It is possible that the Eastern Cherokees can be a part of the 
Cherokee Nation, but it is impossible for the Cherokee Nation to be Eastern Cherokees 
in the sense that the Government construes them, because the Cherokee Nation is 
composed of two or even three distinct classes of Cherokees, viz, the Old Settlers or 
Western Cherokees, the Eastern or Emigrant Cherokees, and others (if I remember 
right) who were known as the "treaty party." 

Mr. Buffington might represent these people in a collective way and yet have no 
right whatever to represent them as individuals without a special authority, which he 
did not have. 

The Eastern or Emigrant Cherokees have a regularly organized council to represent 
them, and that body passed resolutions authorizing you, their regularly commissioned 
attorney, to file a protest against any and all acts of Mr. Buffington in the collection of 
the $1,111,284.70 claim. 

I think, too, that the records of the hon. Sec'y of Interior will show a protest filed 
by telegram immediately after the letting of the contract by Mr. Buffington to Smith 
et al. 

All of these are proofs of Mr. Buffington not being recognized as having such authority 
as he assumed, and that Smith and his associates were not recognized as the attorneys. 
And during the whole fight I have never seen a scratch of a pen from Smith et al. on 
the Eastern Cherokee claim. Furthermore, I have been directly interested in reading 
up the proceeding of the whole case and have never known any other attorneys in the 
case except R. L. Owen and his associates, whose work has proved entirely satisfactory. 
I regret to state that my wife is in bed sick at present, which renders me utterly unable 
to get out to do any active work for the advancement of this case, but if you can get a 
continuance I can do you lots of good. Everyone whom I have seen is in direct accord 
with you and join me in a hearty approval of your honest efforts. 
Respectfully, 

John C. Duncan. 



[In the supreme court of the District of Columbia, holding an equity court.] 

Frank J. Boudinot ] 

against [Equity, No. 26436. 

Ethan A. Hitchcock, Secretary of the Interior, et al.J 

The undersigned on oath state that they are and each of them is an Eastern Cherokee 
and entitled as such to share in the distribution of the fund in these proceedings men- 
tioned ; that they are desirous that the writ of injunction in the bill of complaint herein 
prayed for shall be granted, restraining the defendants therein from paying any money 
out of said fund on account of the pretended contract alleged to have been made by the 
Cherokee Nation, through its principal chief, Thomas M. Buffington, with Finkleberg, 
Nagle & Kirby, of St. Louis, Missouri, and Edgar Smith, of Vinita, Indian Territory. 

We and each of us further swear that the only counsel employed and contracted with 
by the Eastern Cherokees in the matter of the collection of their claim against the 
United States Government for $1,111,284.70, with interest, were John Vaile, Robert L. 
Owen, and their assistants and associates, all of whom have been fully paid therefor, 
as directed by the judgment of the Court of Claims. 

Affiants fui'ther say that they are in full accord and harmony with the complainant 
herein in his effort by this bill to restrain the defendants, the Secretary of the Interior 
and the Treasurer of the United States, from the payment of any money under said 
pretended contract. 

John C. Duncan. 
Joseph S. Bean. 

Subscribed and sworn to before me this 25th day of July, 1906. 

[Notarial seal.] John D. Wakely, Notary Public. 

My commission expires April 6, 1908. 



EASTERN CHEKOKEES. 31 

Affidavit of C. I. Harris in Support of Bill. 

[Filed July 30, 1906.] 
United States of America, 

Indian Territory, Northern Judicial District, ss: 

I hereby certify that on this the 2(5th day of July, 1906, before the subscriber, a notary 
public duly commissioned and qualilied, personally appeared 0. J. Harris, ex-prin- 
cipal chief of the Cherokee Nation, at present assistant executive secretary, and being 
duly sworn, on his oath states: 

That he is at present as.sistant executive secretary of the Cherokee Nation; that 
he has made diligent search among the papers, records, and books of the executive 
office of the Cherokee Nation for the purpose of finding any act or resolution of the 
national council of said nation authorizing and empowering the principal cliief of 
said nation, at that time Thomas M. Buffington, to enter into a contract of employ- 
ment of any lawyers to prosecute the claim of the Cherokee Nation, known as the 
Slade & Bender agreement, against the Government of the United States, and has 
been unable to find any such papers, records, or books; that he has made diligent 
search for the journal of the council branch of the national council, which is a record 
of the proceeding of said council branch, and that he has been unable to find said 
journal. 

C. J. Harris, 
Assistant Executive Secretary of the Cherokee Nation. 

Subscribed and sworn to before me this the 26th day of July, 1906. 

[notarial seal.] J. C. Dannenberg, Notary Public, 

My commission expires Jan. 29th, 1910. 



Separate Answer of Defendant Ethan A. Hitchcock to Bill. 

[Filed July 30, 1906, in the supreme court of the District of Columbia, holding an 
equity term, the day of July, A. D. 1906.] 



Frank J. Boudinot, complainant, 

vs. 

Ethan A. Hitchcock, Secretary of the Interior 

of the United States, 

and 

Charles H. Treat, Treasurer of the United 

States. 



In Equity, Docket No. 58. Case 
No. 26436.] 



I, Ethan A. Hitchcock, one of the defendants above named, by protestation, not 
confessing or acknowledging all or any part of the matters or things in complainant's 
said bill of complaint mentioned to be true in svich manner and form as the same are 
therein set forth and alleged, for answer to so much thereof as this defendant is advised 
is right and proper to be answered, and by way of return to the rule to show cause 
entered hercnn on the 18th day of July, 1906, respectfully states as follows: 

1 . Upon information and belief and for the purposes of this case solely this defendant 
admits that the complainant is an Eastern Cherokee Indian and a resident of the 
Indian Territory, but denies that he is a citizen of the United States. This defendant 
has no knowledge as to the right or authority of said complainant to bring or maintain 
his said suit in a representative capacity, but upon advice of counsel suggests to this 
honorable court that because of the matters and facts hereinafter set forth said corn- 
plainant ought not to be permitted to maintain his said action in this court either in 
a representative capacity or otherwise. 

2. Tliis defendant admits that he is a citizen of the United States and at the present 
time is filling the office of Secretary of the Interior thereof; also that the defendant, 
Charles H. Treat, is a citizen of the United States and at the present time is filling 
the office of Treasurer of the United States. 

3. This defendant admits that on or about May 18th, 1905, the United States Court 
of Claims, in certain causes in said court depending, wherein among others the Chero- 
kee Nation was a claimant and the United States was defendant, rendered a judg- 
ment in favor of the Cherokee Nation and against the United States substantially in 
the terms and form in said bill of complaint set forth, and also admits that on or 
about the 30th day of April, A. D. 1906, the Supreme Court of the United States, 



32 



EASTERN CHEROKEES. 



with but a slight modification, affirmed said judgment of said Court of Claims, but 
for greater precision and certainty defendant annexes true copies of both of said 
judgments hereto, marked, respectively, "Exhibit A" and "Exhibit B,'' and prays 
that the same may be considered and taken as and to be a part of this answer as 
though the same had been set forth at length in the body hereof. 

This defendant is unable either to admit or deny that said complainant is entitled 
to any distriliutive share of so much of the fund referred to in paragraph 3 of said bill 
of complaint as by said judgment of said Court of Claims, modified by the judgment 
of the Supreme Cburt of the United States, is ordered to be paid to the Secretary of 
the Interior for distribution to the Eastern Cherokee Indians as individuals, whether 
residing east or west of the Mississippi River, who were parties to the treaties of 1835-36 
and 1846, the persons entitled to i^irticipate in such distribution not having been offi- 
cially ascertained and identified, but this defendant especially calls attention to the 
fact that the fund so distributable is, as set forth in said bill of complaint, the total 
amount of $1,111,284.70, with interest thereon from the 12th day of June, A. D. 
1838, as provided by said judgment and the laws of the United States applicable 
thereto, amounting in the whole to the sum of $4,937,036.10. •'less such counsel fees 
as may V)e chargeal^le against the same under the provisions of the contract with 
the Cherokee Nation of January 16, 1903," which said contract is more specifically 
referred to and described in paragraphs 5 and 6 of complainant's said bill of complaint, 
the amount of such counsel fees being estimated at $147,527.01. 

5. This defendant denies that he is about to draw his warrant upon the Ti-easury 
of the United States for the payment of any of the coimsel fees referred to in the para- 
graph next above or in said bill of complaint, and particularly denies that he is about 
to draw his warrant upon the Treasury of the United States for the payment of any 
fees alleged or claimed to be chargeable against said fund or any thereof imder and 
by virtue of the contract which is referred to in the findings and judgment of said 
Court of Claims as the "contract with the Cherokee Nation of January 16, 1903," to 
which said contract the firm of Finkelnburg, Nagle & Kirby, of St. Louis, Missouri, 
and Edgar Smith, of Vinita, Indian Territory, are parties of the second and third 
parts, respectively; but if it were otherwise this defendant is informed by counsel, 
and therefore avers that said firm of Finkelnburg, Nagle & Kirby, or the individuals 
composing the same, and said Edgar Smith are and would be indispensable parties 
to any proceedings which would have the effect of enjoining the execution of said 
judgments of the Court of Claims and of the Supreme Court of the United States, or 
the performance on the part of the United States and the Cherokee Nation of the 
duties and obligations imposed upon said Cherokee Nation l>y the terms of the con- 
tract aforesaid. 

6. This defendant denies the allegations of said bill of complaint to the effect that 
said contract of January 16, 1903, was not executed by the Cherokee Nation; and 
denies that Thomas M. Buffington, as principal chief of the Cherokee Nation, was 
without authority from said natii/n to enter into said contract, and furtln^ denies 
that said Buffington brought said contract to \^'ashington in violation of his instruc- 
tions and without the knowledge of said Cherokee Nation, and this defendant further 
denies that the action of said Buffington in connection with said contract was against 
the laws of the Cherokee Nation, and further denies that said contract was presented 
to said nation in open council and rejected as in said bill of complaint alleged; and 
this defendant, on the advice of counsel further answering, says that if the facts were 
otherwise and were as stated in said bill of complaint they would be immaterial and 
without purpose or bearing in this case for the reasons here set forth, viz: 

The Congress of the United States in the exercise of its lawful prerogatives enacted 
on or about July 1st, 1902, a certain act entitled "An act to provide for the allotment 
of the lands of the Cherokee Nation, for the disposition of town sites, and for other pur- 
poses," which said act is printed in full in volume 32, Statutes at Large, at page 716 
et seq. 

By section one (1) of said act it was declared that the words "nation" and "tribe" 
as used therein should each be held to refer to the Cherokee Nation or tribe of Indians 
in Indian Territory. 

By section sixty-eight (68) of said act jurisdiction was conferred upon the Court of 
Claims to examine, consider, and adjudicate, with a right of appeal to the Supreme 
Court of the United States " any claim which the Cherokee tribe or any band thereof, 
arising under treaty stipulations, may have against the United States, " and it was also 
provided thereby that the institution and prosecution of any such suit on the part of 
the tribe should "be tlirough attorneys employed and to be compensated in the man- 
ner prescribed in sections 2103 to 2106, both inclusive, of the Revised Statutes of the 
United States, the tribe acting through its principal chief in the employment of such 
attorneys." 



KASTEKN chekokep:!^. 33 

Section 74 ol .said act declared that said act should not ■take effect or be of any 
validity until ratified by a majority of 'the whole number of votes cast by the legal 
voters of the ('herokee Nation" in the manner prescribed in section 75 thereof. 

Said act of July 1. 1902. was subsequently duly ratified by a majority of the votes 
cast by legal voters of the Cherokee Nation as prescribed by said section 75 thereof at 
a popular election held August 7. 1902, and such ratification was duly certified to the 
President of the United States as required thereby. 

Thereafter, on January IG, 1903, pursuant to the provisions of said section 68 of said 
act of Congress, and in strict compliance with the manner and requirements set forth 
ami prescribed in sectioiLs 2103, 2104. 2105. and 2106 of the Revised Statutes of the 
United States, a contract was entered into at the city of Washington by and between 
the Cherokee Nation, acting through its principal chief, Thcjmas M. BuflUngton, and 
the firm of Finkelbiu'g, Nagel & Kir1)y and Edgar Smith, wh'ch said contract was on 
said date duly approved l)y the Honorable William A. Jones. Commissioner of Indian 
Affairs, and this defendant, acting in his capacity of Secretary of the Interior, as will 
more fully appear from an inspection of the copy of said contract and the endorsements 
thereon hereto annexed, marked ''Exhibit C, '''and prayed to be taken as a part hereof 
as though set forth at large herein. 

Under the requirements and provisions of section 2104 of the Revised Statutes of 
the United States the Honorable Thomas Ryan, Acting Secretary of the Interior, and 
the Honijrable Charles F. Larrabee, Acting Commissioner of Indian Affairs, on July 17, 
1906, certified to the proper accounting officers that said contract had been fully com- 
plied with and fulfilled on the part of said Finkeln1)erg, Nagel & Kirby and Edgar 
Smith. 

By the terms of said contract, as will more fully appear from an inspection thereof, 
it was agreed and provided that for and in consideration of the services to be rendered 
by said firm of Finkelnberg, Nagel & Kirby and Edgar Smith they should receive a 
fee or compensation calculated and limited only as follows, viz: 

•'Five per centum upon the fu-.st million dollars or part thereof collected, and two 
and one-half per centum upon the amount collected over and above the said first 
million dollars;" the disposition to be made of the money when collected under said 
contract to be as provided in section 66 of said act of Congress of July 1, 1902. 

Thereafter, on March 3, 1903, there was duly approved another act of Congress, enti- 
tled "An act making appropriations for the current and contingent expenses of the 
Indian department and fulfilling treaty stipulations with various Indian tribes for the 
fiscal year ending June thirtieth, nineteen hundred and four, and for other purposes" 
(32 Stats., 996), by one paragraph or section whereof it was provided that said section 
.sixty-eight (68) of the act of July 1 , 1902, aforesaid should be so constructed as to give the 
Eastern Cherokees, so-called, including those in the Cherokee Nation and those who 
remained east of the Missi.ssippi River, acting together or as two bodies, the status of a 
band or bands, as tlie case may be, for all the piuposes of said section; and further pro- 
vided that both the Cherokee Nation and said Eastern Cherokees, so-called, should 
be made parties to any suit against thi> United States under said section sixty-eight 
(68); and further declared that, subject to the right of appeal granted in and by said 
section, the Court of Claims should render its judgment in favor of the rightful claimant 
and should also determine to whom the proceeds of such judgment equitably belonged 
in whole or in part, and also whether, for the purpose of participating in said claim, 
the Cherokee Indians who remained east of the Mississippi River constituted a part 
of the Cherokee Nation or of the Eastern Cherokees, so-called. 

In suits instituted in the Court of Claims by petitions duly filed by and on behalf 
of the Cherokee Nation and by and on behalf of all the Eastern Cherokees, both west 
and ea.«t of the Mississippi River, and by and on behalf of certain Eastern Cherokees 
living east of the Mississippi River, which said suits were numbered, respectively, 
23199, 23212, and 23214, and were consolidated by said court, after hearing a judg- 
ment was entered in said consolidated catises in favor of the plaintiff. The Cherokee 
Nation, and against the United States for, among others, the above-mentioned item 
of $1,111,284.70, with interest thereon at the rate of five (5) per cent from June 12, 
1838, to date of payment, amounting to the sum of $3,825,751.40, or in the aggregate 
of both principal and interest to the sum of $4,937,036.10, as above stated, but in 
accordance with the provisions of said act of March 3, 1903, above mentioned, it was 
further provided in and by said judgment that the proceeds of said item, both prin- 
cipal and interest, "less such counsel fees as may be chargeable against the same 
under the provisions of the contract with the Cherokee Nation of January 16, 1903," 
being the contract aforesaid between the Cherokee Nation acting by its principal 
chief, Thomas M. Buffington, and the firm of Finkelburg, Nagel & Kirby and Edgar 
Smith, and less "such other counsel fees and expenses" as might thereafter be allowed 

S. Doc. 227, 59-2 3 



34 EASTERN CHEROKEES. 

by said court under the provisionp of said act of March 3. 1903, should be paid to the 
Secretary oi the Interior to be l)y him received and distributed in accordance with 
the further provisions of said judgment to the individuals thereby adjudged to be 
entitled to receive it. This said judgment of the Court of Claims, on an appeal taken 
to the Supreme Court of the United States in each and every respect material here, 
was affirmed by said Supreme Court, as will more fully appear by and from an inspec- 
tion of said judgments respectively, copies whereof are annexed hereto, as aforesaid. 

Further answering paragraph six (6) of said bill of complaint tliis respondent sub- 
mits that the contract in question was a lawful contract, binding in all respects upon 
the Cherokee Nation, and also binding upon individuals, Eastern Cherokees, or others 
who claim any rights or benefits under or by virtue of said judgment of the Court 'of 
Claims in favor of the Cherokee Nation. 

7. This defendant admits that the amount of the fee accruing to the firm of Fink- 
elburg, Nagel & Kirby and Edgar Smith jointly under said contract of January 16, 
1903, on account of the item and interest thereon here involved is estimated at $147,- 
527.01, but denies that the payment thereof to the parties entitled to receive the same 
will in any wise reduce the distributive share of said complainant under the terms 
of said judgment of the Court of Claims or under the terms of the act of Ct)ngress of 
June 30, 1906, making an appropriation to pay the same for the reason that by the 
terms of said judgment and of said act of Congi-ess making an apj^ropriation to pay 
the same the distril)utive share of said complainant and of all others who stand in like 
position with him is a proportionate share of the total amount recoA'ered on account 
of said item of 11,111,284.70, with interest, less the said sum of .|147,527.0l chargeable 
against the same under the provisions of the contract aforesaid with the Cherokee 
Nation, and such other counsel fees and expenses as may have been allowed by said 
Court of Claims under the provisions of the act f>f Congress of March 3, 1903, above 
mentioned. 

But were the matter otherwise this defendant for further answer says that said 
Eastern Cherokees entitled to participate in the distribution of the proceeds of said 
judgment will, according to best estimates, number about thirty to forty thousand and 
the share of any one of them in said sum of $147,527.01 would not in any event exceed 
the sum of five (5) dollars, wherefore this defendant submits that this honorable court 
is without jurisdiction to entertain any suit either to recover the respective shares 
of any of such individuals or to restrain or enjoin the payment over of the same in 
accordance with the terms of the judgments of the Supreme Court of the United States 
and of the Court of Claims, and of the act of Congress making appropriation to pay the 
same. 

Wherefore, having thus fully answered the complainants' bill of complaint, this 
defendant respectfully prays that the rule to show cause passed herein on the 18th 
day of July, A. D. 1906, may be discharged, and this defendant may l)e dismissed 
with his reasonable costs in Ihis behalf expended. 

E. A. Hitchcock, 
By Thos. Ryan, 
Acting Secretary of Dept. of Interior. 

Daniel W. Baker, 

U. S. Atty. for defts. 

District of Columbia, ss: 

I, Thomas Ryan, being first duly sworn, do say that I am Acting Secretary of the 
Interior Department and as such am familiar with the general course of business and 
conduct of affairs therein; I have read over the foregoing and annexed answer of 
Ethan A. Hitchcock and know the contents thereof and the matters of fact therein 
stated, are ti-ue to the best of my knowledge, information, and belief. 

Thos. Ryan. 

Subscribed and sworn to before me this 30th day of July, A. D. 1906. 
[notarial sealI.] W. Bertrand Acker, 

Notary Public in and for D. C. 



EASTERN CHEROKEES. 85 

Exhibit A. 

[Filed July 30, 1906.] 

[House Document No. 813, Fiftj'-nintli Congress, first session.] 

Letter from the Secretary op the Treasury Transmitting Record op Certain 
Judgments Rendered by the Court of Claims Against the United States. 

Treasury Department, 

Office of the Secretary, 

Washi7igton, May 17, 1906. 
Sir: I have the honor to transmit herewith for the consideration of Congress, 
the record of a judgment rendered by the Court of Claims on May 18, 1905, in 
consolidated causes No. 23199, The Cherokee Nation v. The United States; No. 23214, 
The Eastern Cherokees v. The United States; and No. 23212, The Eastern and Emi- 
grant Cherokees v. The United States, aggregating a principal sum of $1,134,248.23, 
therein set forth, with interest upon the several items of judgement at 5 per cent from 
the several dates named therein to date of payment, as provided in the decree. 
An appropriation for the judgment is necessary before payment can be made. 
A copy of the judgment as transmitted to this Department by the Court of Claimss 
December 29, 1905, and copy of the mandate of the Supreme Court of the United 
State, dated May 14, 1906, as certified by the Court of Claims, May 16, 1906, accom- 
pany this communication. 

Jurisdiction was conferred upon the Court of Claims in this case by section 68 of the 
act of Congress of July 1, 1902 (32 Stat. L., 726), and amendment thereof in section 1 
of the act of March 3, 1903 (32 Stat. L., 996). 
Respectfully, 

L. M. Shaw, Secretary. 
The Speaker of the House of Representatives. 

Court of Claims, 
Washington, D. C, December 29, 1905. 
Sir: By order of the court I transmit herewith inclosed an attested transcript of 
the judgment rendered in the above-entitled cases on the 18th day of May, 1905, with 
the request that the same may be filed in your Department. 
Very respectfully, 

John Randolph, 
Assistant Clerk Court of Claims. 
Hon. Leslie M. Shaw, 

Secretary of Treasury, City. 

In the Court of Claims. 

The Cherokee Nation 

V. \No. 23199. 

The United States. 

The Eastern Cherokees 

V. l-No. 23214. !>Consolidated. 

The United States. 

The Eastern and Emigrant Cherokees 

V. \No. 23212. 

The United States. 

At a Court of Claims, held in the city of Washington, District of Columbia, May 18, 
A. D. 1905, judgment was ordered to be entered in the above consolidated cases as 
follows: 

The above causes, on motion and by consent of the parties, having heretofore been 
consolidated for purposes both of hearing and judgment by appropriate order of this 
court, came on to be heard upon the pleadings, orders, and proofs, and were argued by 
Messrs. Charles Nagel, Edgar Smith, and Frederic D. McKenney, on behalf of the 
Cherokee Nation; Messrs. Robert L. Owen and William H. Robeson, on behalf of the 
Eastern Cherokees; Mrs. Belva A. Lockwood, on behalf of certain individual claimants, 
styled Eastern and Emigrant Cherokees, and Mr. Assistant Attorney-General Pradt, 
on behalf of the United States; and the court being not sufficiently advised in the 



36 EASTERN CHEROKEES, 

premises, it is, this 18th day of May, A. D. 1905, adjudged, ordered, and decreed that 
the plaintiff, the Cherokee Nation, do have and recover of and from the United States 
as follows: 

Item 1. The sum of $2. 125. 00 

With interest thereon at the rate of 5 per cent from Febniary 
27, 1819, to date of payment. 

Item 2. The sura of 1. ill, 284. 70 

With interest thereon at the rate of 5 per cent from June 12. 
1838, to date of payment. 

Item 3. The sum of 432. 28 

With interest thereon at the rate of 5 per cent from January 1 , 
1874, to date of payment. 

Item 4. The sum of 20, 406. 25 

With interest thereon from July 1, 1903, to date of payment. 

The proceeds of said several items, however, to be paid and distributed as follows: 

The sum of two thousand one hundred and twenty-five dollars (|2,125) with interest 
thereon at the rate of 5 per cent from February 27, 1819, to date of payment, less 5 
per cent thereof contracted by the Cherokee Nation to be paid as counsel fees, shall 
be paid to the Secretary of the Interior in trust for the Cherokee Nation, and shall be 
credited on the proper books of account to the principal of the "Cherokee school fund " 
now in the possession of the United States and held by them as trustees. 

The sum of four hundred and thirty-two dollars and twenty-eight cents ($432.28), 
with interest thereon at the rate of 5 per cent from January i, 1874, to date of pay- 
ment, less 5 per cent thereof contracted by the Cherokee Nation to be paid as counsel 
fees, shall be paid to the Cherokee Nation to be received and receipted for by the 
treasurer or other proper agent of said nation entitled to receive it. 

The sum of twenty thousand four hundred and six dollars and twenty-five cents 
(^$20,406.25), with interest thereon at the rate of 5 per cent per annum from July 1, 
1893, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation 
to be paid as counsel fees, shall be paid to the Secretary of the Interior and credited 
on the proper books of account to the principal of the "Cherokee national fund," 
now in the possession of the United States and held by them as trustees. 

The sura of one million one hundred and eleven thousand two hundred and eighty- 
four dollars and seventy cents ($1,111,284.70), with interest thereon from June 12, 
1838, to date of payment, less such counsel fees as may be chargeable against the 
same under the provisions of the contract with the Cherokee Nation of January 16, 
1903, and such other counsel fees and expenses as may be hereafter allowed l)y this 
court xmder the provisions of the act of March 3, 1903 (32 Stat. L., 996), shall be paid 
to the Secretary of the Interior, to be by him received and held for the uses and 
purposes following: 

First. To pay the costs and expenses incident to ascertaining and identifying the 
persons entitled to participate in the distribution thereof and the costs of' making 
such distribution. 

Second. The remainder to be distributed directly to the Eastern and Western 
Cherokees, who were parties either to the treaty of New Echota, as proclaimed May 
23. 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east 
or west of the Mississippi River, or to the legal representatives of such individuals. 

So much of any of the above-mentioned items or amounts as the Cherokee Nation 
shall have contracted to pay as counsel fees undtr and in accordance with the pro- 
visions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the United 
States, and so much of the amount shown in item numbered two (2) as this court 
hereafter by appropriate order or decree shall allow for counsel fees and expenses 
under the provisions of the act of March 3, 1903, above referred to, shall be paid by 
the Secretary of the Treasury to the persons entitled to receive the same upon the 
making of an appropriation by Congress to pay this judgment. 

The allowance of fees and expenses by this court under said act of March 3, 1903, is 
reserved until the coming in of the mandate of the Supreme Court of the United States. 

By the court. 
A true copy of record. 

In testimony whereof I have hereunto set my hand and affixed the seal of said court 
at Washington, this twenty-ninth day of December, A. D. 1905. 
[seal.] John Randolph, 

Assistant Clerk Covrt of Claims. 
Attest: 

C. C. NoTT, Chief Justice. , 



EASTERN CHEROKEES. 

Exhibit B. 

[FUed July 30, 1906.] 

Com-t of Claims. 

The Cheuokee Nation ] 

V. \ No. 23199. 

The United States. J 

The Eastern Cherokees ] 

V. [No. 23214. Koiisolklated. 

The United States and The Cherokee Nation. J 

The Eastern Emigrant Cherokees ] 

■y. i No. 23212. 

The United States. I 

1, John Riindolph, assistant clerk Court of Claims, hereby certify that the annexed 
is a true copy of the mandate of the Supreme Court of the United States, filed in said 
Court of Claims, May 15, 1906. 

In testimony whereof I have hereunto set my hand and affixed the seal of said court 
at Washington City, this 16th day of May, A. D. 1906. 

[seal.] John Randolph, 

Assistant Cleric. Court of Claims. 
United States of America, ss: 

The President of the United States of America to the honorable the judges of the Court of 

Claims, greeting: 

WTiereas, lately in the Court of Claims, before you or some of you, in causes between 
The Cherokee Nation and The United States, No. 23199; The Eastern Cherokees and 
The ITnited States and the^ Cherokee Nation, No. 23214; and The Eastern and Enai- 
grant Cherokees and The Jnited States, No. 23212, wherein the decree of the said 
Court of Claims entered in said causes on the 18th day of May, A. D. 1905, is in the 
following words, viz: 

"The above cause.s, on motion and by consent of the parties, having heretofore been 
consolidated for purposes both of hearing and judgment by appropriate order of this 
court, came on to be heard upon the pleadings, orders, and proofs, and were argued 
by Messrs. Charles Nagel, Edgar Smith, and Frederick D. McKenney on behalf of the 
Cherokee Nation; Messrs. Robert L. Owen and William H. Robeson on behalf of the 
Eastern Cherokees: Mrs. Belva A. Lockwood on behalf of certain individual claimants 
styled Eastern and Emigrant Cherokees, and Mr. Assistant Attorney-General Pradt on 
behalf of the United States; and the court being now sufficiently advised in the 
premises, it is, this 18th day of May, A. D. 1905, adjudged, ordered, and decreed that 
the plaintiff, the Clieroke(> Nation, do have and recover of and from the United States 
as follows: 

Item 1. The sum of «2, 125. 00 

With interest thereon at the rate of 5 per cent from February 
27, 1819, to date of payment. 

Item 2. The sum of 1.111, 284. 70 

With interest thereon at the rate of 5 per cent from June 12, 
1838, to date of payment. 

Item 3. The sum of ^32. 28 

With interest thereon at the rate of 5 per cent from January 1 . 
1874, to date of pavment. 

Item 4. The sum of ' 20, 406. 25 

With interest thereon from July 1 , 1903, to date of payment. 

"The proceeds of said several items, however, to be paid and distributed as follows: 
"The sum of §2,125, with interest thereon at the rate of 5 per cent from February 27, 
1819, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation 
to be paid as counsel fees, shall be paid to the Secretary of the Interior in trust for the 
Cherokee Nation, and shall be credited on the proper books of account to the principal 
of the 'Cherokee school fund,' now in the possession of the United States and held by 
them as trustees. 

"The sum of §432.28, with interest thereon at the i-ate of 5 per cent from January 1, 
1874, to date of payment, less 5 per cent thereof contracted by the Cherokee Nation 



38 EASTERN CHEROKEES. 

to be paid as counsel fees, shall pe paid to the Cherokee Nation, to be received and 
receipted for by the treasurer or other proper agent of said nation entitled to receive it. 

"The sum of $20,406.25, with interest thereon at the rate of 5 per cent per annum 
from July 1, 1893, to date of payment, less 5 per cent thereof contracted by the Chero- 
kee Nation to Ije paid as counsel fees, shall be paid to the Secretary of the Interior 
and credited on the proper books of account to the principal of the 'Cherokee national 
fund,' now in the possession of the United States and held by them as trustees. 

"The ."^um of $1,111,284.70, with interest thereon from June 12, 1838, to date of 
payment, less such counsel fees as may be chargealjle against the same under the 
provisions of the contract with the Cherokee Nation of January 16, 1903, and such 
other counsel fees and expenses as may be hereafter allowed by this court under the 
provisions of the act of March 3, 1903 (32 Stat., 996), shall be paid to the Secretary of 
the Interior, to be by him received and held for the uses and purposes following: 

"First. To pay the cost and expenses incident to ascertaining and identifying the 
persons entitled to participate in the distribution thereof and the costs of making 
such distribution. 

"Second. The remainder to be distributed directly to the Eastern and Western 
Cherokees, who were parties either to the treaty of New Echota, as proclaimed May 
23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east 
or west of the Mississippi River, or to the legal representatives of such individuals. 

"So much of any of the above-mentioned items or amounts as the Cherokee Nation 
shall have contracted to pay as counsel fees under and in accordance with the provi- 
sions of sections 2103 and 2106, both inclusive, of the Revised Statutes of the L'nited 
States, and so much of the amount shown in item numbered two (2) as this court 
hereafter by appropriate order or decree shall allow for counsel fees and expenses 
under the provisions of the act of March 3, 1903, above referred to, shall be paid by 
the Secretary of the Treasury to the persons entitled to receive the same, upon the 
making of an appropriation by Congress to pay this judgment. 

"The allowance of fees and expenses by this court under said act of March 3, 1903, 
is reserved until the coming in of the mandate of the Supreme Court of the United 
States. 
f%_^3 ; " ■ IJy the Co u rt. " 

as by the inspection of the transcript of the record of the .said Court of Claims, which 
was brought into the Supreme Court of the United States by virtue of separate 
appeals taken by the United States, the Eastern Cherokees, and the Cherokee 
Nation, respectively, agreeably to the act of Congress in such case made and 
provided, fully and at large appears. 

And whereas, in the present term of October, in the year of our Lord one thousand 
nine hundred and five, the said cause came on to be heard before the said Supreme 
Court, on the said transcript of record, on separate appeals, and was argued by counsel; 

On consideration whereof, it is now here ordered and adjudged by this court that 
the second subdivision of the fourth paragraph of the decree of the said Court of 
Claims in this cause be modified so as to direct the distribution to be made to the 
Eastern Cherokees as individuals, whether east or west of the Mississippi River, 
parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers, and, as 
so modified, be, and the same is here]:iy, affirmed. 

April 30, 1906. 

You, therefore, are hereby commanded that such proceedings be had in saidca use 
as, according to right and justice and the laws of the United States, ought to be had, 
the said ajipeals notwithstanding. 

Witne.ss the Honorable Melville W. Fuller, Chief Justice of the United States, the 
14th day of May, in the year of our Lord one thousand nine hundred and six. 

[seal.] James H. McKenney, 

^ _ Clerk of the Supreme Court of the United States. 



Exhibit C. 
[FUed July 30, 1906.] 

f Know all men by these presents, that this contract, executed and approved in the 
manner prescril>ed in sections 2103 to 2106, l)oth inclusive, of the Revised Statutes 
of the United States, and in pursuance of the provisions of section 68 of an act of 
Congress entitled "An act to provide for the allotment of lands in the Cherokee Nation, 



EASTERN OHEROKEES. 39 

and the disposition of town sites therein, and for other purposes,'" approved by the 
President of the United States July 1st, 1902, and ratified by the Cherokee people 
at a popular election held August 7th, 1902, is made by and between the Cherokee 
Nation, acting through its principal chief, Thomas M. Buffington, whose occupation 
is that of the principal chief of the Cherokee Nation, and whose residence is in the 
town of Vinita, in the Indian Territory, party of the first part, and the firm of Finkeln- 
burg. Nagel. and Kirlw. composed of Gustav A. Finkelnburg, Charles Nagel. Daniel 
N. Kir))y, Gustav F. Decker, Allen C. Orrick, and Arthur B. Shepley, whose resi- 
dences are in the city of St. Louis, State of Missom-i, the occupation of each of whom 
is that of attorney at law, and which firm is party of the second part; and Edgar Smith, 
whose residence is in the town of Vinita, Indian Territory, and whose occupation is 
that of attorney at law. and who is party of the third part. 

The purpose for which this contract is made is to secure the services of the parties 
of the second and third part as attorneys and counselors at law for the Cherokee Nation; 
the special thing to be done under this contract by the parties of the second and third 
part is to rei)resent said nation as attorneys in the Court of Claims of the United States 
and in the Supreme Court of the United States (if any appeal is taken) in the case 
hereinafter mentioned ; that is to say, in the prosecution of the claim of the Cherokee 
Nation against the United States, which claim is commonly known as the "Slade- 
Bendcr award" and grew out of and is described in the agreement between the Cher- 
okee Nation and the United States for the purchase of what is known as the Cherokee 
Outlet. 

This contract is to run from the 16th day of January, 1903, until the fii-st day of 
January, 1907, or until said claim is prosecuted to a final determination and the judg- 
ments obtained thereunder (if any) are paid as provided in said act of Congress. 

The rate per centum of fee to be paid to the parties of the second and third part in 
full for their services under this contract shall be as follows: Five per centum upon 
the first million dollars, or part thereof, collected; and two and one-half per centum 
upon the amount collected over and above the said first million dollars; the disposition 
to 1)0 made of the money when collected under this contract shall be as provided in 
section 68 of the act of (Jongi-ess aforesaid — the compensation aforesaid to be paid to 
the said parties of the second and third part by the proper officers of the United States 
shall he de<lucled from the amount recovered and Ijy the said officers paid direct to 
the said pari ies of the second and third part. 

The scope and authority for the execution of this contract are set forth in section 68 
of the said act of Congress, approved by the President and ratified by the Cherokee 
Nation as aforesaid, and no contingent matter or condition, except as herein set forth, 
constitutes any part of this contract: and by virtue of and under the authority of said 
act of Congress, the party of the first part has employed, and by these presents doth 
employ, the parties of the second and tlihd part to represent said Cherokee Nation in 
said coin-ts in the city of Washington, District of Columbia, as attorneys of said nation 
in the prosecution to a final determination and payment of the said claim, for and 
during the time aforesaid and for the compensation aforesaid, hereby giving to said 
attorneys full jjowei' and authority in the premises to do and perform all things what- 
soever that may be necessary and lawful in the prosecuting of the said claim and for 
securing payment by the United States of any judgment that may be recovered by 
the said nation against the United States, as provided in said act of Congress, to sign 
and execute all papers that may 1)e required on l^ehalf of said nation. herel)y ratifying 
and confirming all the lawful acts of said attorneys done in pursuance of the authority 
of this contract. 

The parties of the second and third part hereby accept the employment herein set 
forth, and they will, to the l)est of their ability, do and perform the services stipiilated 
and required by this contract. 

Witn(>ss our hands and seals this Kith day of January, 1903, and executed in 
triplicate. 

Thomas M. Buffington, [seal.] 

Principal Chief of the Cherokee Nation. 

FiNKELBURG, NaGEL & KtRBY. [sEAL.] 

Attorneys at Lav). 
Edgar Smith, [.seal.] 

Attorney at Lav. 

United States of America, District of Columbia, ss: 

I, Edward F. Bingham, one of the justices of the supreme court of the District of 
Columbia, which is a court of record, do hereby certify that the above contract was 
executed before me on the 16th day of January, 1903, by Thomas M. Buffington, 
principal chief of the Cherokee Nation and acting for said nation, party of the first 



40 EASTERN CHEKOKEES. 

part, and by Charles Nagel, a member of the firm of Finkelnburg, Nagel and Kirby, 
acting for said firm, and by Edgar Smith, parties of the second and third part, in my 
presence; that the interested parties therein are the Cherokee Nation, which is rep- 
resented by the said Thomas M. Buffington, wlio is the principal chief of the said 
nation, and Finkelnburg, Nagel and Kirl)y, composed of Gustav A. Finkelnburg, 
Charles Nagel, Daniel N. Kirby, Gustav F. Decker, Allen C. Orrick, and Arthur B. 
Shepley, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian Territory, as stated to 
me at tlie time; that the parties present were the said Thomas M. Bufhngton and the 
said Charles Nagel and the said Edgar Smith; that the source and extent of the author- 
ity claimed by the said contracting parties to make said contract was, and is, section 
68 of the act of Congress, the title of which is set forth in said contract, and that the 
said contract was signed and executed, for the purpose and consideration therein 
stated and set forth, by the said Thomas M. Buffington and by the said Charles Nagel 
and by the said Edgar Smith, who are personally well known to me, and who appeared 
before me at the court house in tlie City of Washina:toi\ District of Columbiii . 

E. F. BlXOHAM, 

Chirf .Justice Supreinc Court D. C 

Supreme Court of the District oy Columbia: 

I; John R. Young, clerk of the supreme court of the District of Columbia, hereby 
certify that Edward F. Bingham, whose genuine signature is sul)scribed to the fore- 
going certificate, was, at the time of signing the same, chief justice of said court, duly 
commissioned and c{ualified. 

Witness my hand and the seal ol said CDurt this Kith day of January. 1903. 

[seal.] John R. Young, Clerk. 



Answer of Charles H. Treat, Tueasiirer oi- the I'mteh States. 

[Filed Jidv :-5(), 1906, in the supreme court of the District of Columbia, holding an 
equity term the 30th day of July, A. D. 1906.] 

Fhank J. Boudinot, complainakt. 

vs. 

Ethan A. Hitchcock, Secretary of the Interior 

of the United States. 

and 

Charles U. Treat, Treasurer of the United 

States. 



In E(pnlv. docket 58. No. 
' 26436. 



Now comes the defendant, Charles H. Treat, by protestation, not confessing or 
acknowledging all or any of the matters and things in complainant's said bill of com- 
plaint to be true in the manner and form in which they are .stated therein, for answer 
to said bill of complaint, and, by way of return to the rule to show cause entered herein 
on the 18th day of July, A. D. 1906. states as follows: 

1. This defendant has no such knowledge or information as would or does enable 
him to either admit or deny the averments of fact contained in paragraph one (1) of 
complainant's said bill of complaint . and if the same should be deemed to be material 
calls for strict proof thereof. 

2. This defendant admits that Ethan A. Hitchcock is a citizen of the United States 
and is sued as stated; and also admits that he. Charles H. Treat, is a citizen of the 
United States, and is sued as stated. 

3. This defendant, upon information and belief, admits that on or about May 18, 
1905, the Court of Claims rendered a judgment in favor of the Cherokee Nation and 
against the United States in substantially the form alleged in paragraph three (3) of 
complainant's said bill of complaint; and also, upon information and belief , that on or 
about the 30th day of April, 1906, said judgment was affirmed 1)y the Supreme Court 
of the United States with a modification substantially as stated, but, for greater cer- 
tainty in case of need, prays that reference may be made to copies of each of said 
judgments which will be produced upon the hearing of this cause. 

4. As to whether said complainant is an Eastern Cherokee Indian, and as to whether 
he is entitled to any distributive share in the fund referred to in paragraph 3 of said 
bill of complaint, this defendant is without any such knowledge or information as will 
enable him to either admit or deny the averments of said complainant in said bill of 
complaint contained, and. if such facts be deemed to be material, calls for strict proof 
thereof. 



EASTERN CHEROKEES. 41 

5. This defendant is without any such information or knowledge as would or does 
enable him either to admit or deny the averment contained in paragraph 5 of said bill 
of complaint to the effect that the defendant, Ethan A. Hitchcock, Secretary of the 
Interior, either has or is about to draw his warrant upon the Treasury of the United 
States, as in said paragraph is specified, and therefore calls for strict proof thereof, if 
said averments of fact be deemed material upon the hearing of any of the issues here 
involved; but this defendant expressly denies that he is about to honor any draft 
which may have been or may hereafter be drawn by said Ethan A. Hitchcock, as 
Secretary of the Interior, in favor of the parties mentioned in said paragraph 5 of said 
bill of complaint, or any of them. 

But further answering said paragraph of said bill of complaint, this defendant says 
that if the fact were otherwise it is plain that the payees of any such draft or their 
indorsees are necessary and indispensable parties to any proceeding in this court 
having for its object the enjoining of payment of any such draft, and that until such 
parties by proper process shall have been made parties to such proceeding the remedy 
prayed by the extraordinary writ of injunction should not be granted. 

6, 7, and 8. This defendant is without any such knowledge or information as would 
or does enable him either to admit or deny all or any of the facts averred in paragraphs 
6, 7, and 8 of complainant's said bill of complaint, and, if the same should be deemed 
material to the proper determination of any of the issues involved in this cause, calls 
for strict proof thereof. 

Wherefore, having answered thus fully so many of the averments of said bill of 
complaint as his knowledge or information enables him to answer, this defendant prays 
that said rule to show cause may be discharged and that he may be hence dismissed 
with his reasonable costs in this behalf expended, and defendant will ever pray, &c. 

Chas. H. Treat, Treasurer of U. S. 
Daniel W. Baker, 

U. S. Atty. for Deft. 

District of Columbia, ss: 

I, Charles H. Treat, being fu'st duly sworn, do depose and say that I am the Treas- 
urer of the United States and the person whose name is subscribed to the foregoing and 
annexed answer to the bill of complaint of the complainant, Frank J. Boudinot; I have 
read over said answer and know well the contents thereof; the matters and things 
therein stated of my own knowledge are true, and those stated upon information and 
belief are believed to be true. 

Chas. H. Treat. 

Subscrilx'd and .sworn to before me this 30th day of July, A. D. 1906. 

Hiram W. Barrett, Notary Public, D. C. 



AFFIDAVIT OF FRANK J. BOUDINOT. 

I Filed July 31, ]!K)6, in the supreme court of the District of Columbia.] 

Frank J. Boudinot j 

vs. \ 

Ethan Allen Hitchcock.) 

Frank J. Boudinot, being duly sworn, on oath says that he is the complainant in this 
case, and that on or about the I4th day of February, A. D. 1900, the Eastern Chero- 
kees, in council. as.sembled at Big Tucker Springs, near Tahlequah, in the Cherokee 
Nation, and organized the independent council of the Eastern Cherokees for the pur- 
pose of taking appropriate steps for the prosecution of their claim against the Govern- 
ment of the United States for $1,111,284,70, as found to be due under the terms of the 
Slade and Bender accounting and report dated April 28, 1894, and thereupon, to wit, 
on or about the 20th day of April. 1901, certain individuals composing the executive 
committee of said Eastern or Emigrant Cherokees entered into a contract with John 
Vaile, of Fort Smith, Arkansas, a true copy of which is filed herewith as part of this 
aflTidavit, whereby it was agreed between the parties to said contract that the said John 
Vaile and his associates should prosecute said claim of said Eastern and Emigrant 
Cherokees against the United States refen-ed to in said Slade and Bender report and 
account for the gross sum of 15 per cent of the amount collected for the benefit of said 
Eastern and Emigrant Cherokees from the United States. 

Affiant further makes oath and deposes and says that said John Vaille and his associ- 
ates have successfully prosecuted said claim to final judgment, having begun to carry 
out and perforin their contract immediately upon its execution and that their efforts 



42 EASTERN CHEROKEES. 

on that behalf have been fully recognized by the judgment of the Court of Claims ren- 
dered in the consolidated cases of the Cherokee Kation and the Eastern and Emigrant 
Cherokees against the United States, which has awarded to said John Vaille and his 
associates for their services in the collection of said claim the said sum of 15 per cent, as 
provided for in said contract. 

Afliant further saith that said sum of 15 per cent so awarded by said judgment of said 
Court of Claims has been paid out of said fund by said Eastern and Emigrant C herokees. 

Aftiant further saith that but for the interference of said firm of Finkleberg, Nagle & 
Kirby, and said Edgar Smith, under their pretended contract with the Cherokee 
Nation, referred to in these proceedings, and the denial by them on behalf of said 
Cherokee Nation of the exclusive right of the Eastern and Emigrant Cherokees to the 
distribution per capita of said fund, the same would long since liave been paid to and 
distributed among said Eastern and Emigrant Cherokees. 

Frank J. Boudinot. 

Subscribed and sworn to before me this 30th day of July, A. D. 1906. 

[Notarial seal.] Grayce E. Wiltberger, Notary rublic. 

My commission expires Feb. 18, 1911. 



Contract between David Muski-at, of Flint District, Daniel Gritts, of Tahlequah Dis- 
trict, and Frank J. Boudinot, of Illinois District, the Executive Committee of indi- 
viduals known as Eastern or Emigrant Cherokees, and John Vaille, of Fort Smith, 
Arkansas, for the collection of certain moneys due the said Eastern or Emigrant 
Cherokees. 

Know all men by these presents, That this contract made in writing and in duplicate, 
a copy whereof is hereby delivered to each of the contracting parties, witnesses that we, 
David Muskrat, attorney, of Flint district; Daniel Gritts, attorney, of Tahlequah dis- 
trict, and Frank J. Boudinot, of Fort Gibson, Illinois district, attorney at law, all being 
residents of the Cherokee Nation and constituting "The executive committee of the 
Eastern or Emigrant Cherokees" under the authority of the conventions or councils of 
the Eastern Cherokees by resolutions duly passed at Bug Tuckers Springs, fherokee 
Nation, on the sixteenth day of February. A. D. 1900, and on the ft>urth day of April, 
A. D. 1900, copies of which are hereto attached and made a part hereof, acting for pur- 
selves and other Eastern Cherokees and their heirs or legal representatives, parties of 
the first part, and John Vaile, counsellor, of Fort Smith, State of Arkansas, party of the 
second part, contract and agree as follows, to wit: 

First. This contract is made at Fort Smith, in the State of Arkansas, on the 20th 
day of April, 1901, for the purpose of collecting the money due the Eastern or Emi- 
grant Cherokees under the treaties between the Cherokee Nation and the United States, 
and particularly imder the fifteenth article of the treaty of 1835 and the ninth article 
of the treaty of 1846, said money being due l^y the United States and being particu- 
larly set forth in the so-called Slade-Bender report, as rendered by them on the twenty- 
eighth day of April, 1894, and found on page thirty-two. House of Representatives 
Executive Document Numbered one hundred and eighty-two. Fifty-third Congress, 
third session, in the second item of their said finding, to wit: 

"Under the treaty of 1835: Amount paid for removal of Eastern Cherokees to the 
Indian Territory, improperly charged to treaty fund, $1,111,284.70, with interest 
from June 12th, 1838, to date of payment." 

Said money is to be disposed of, when collected, in the manner set forth in the 
ninth article of the treaty of 1846 and paid out, per capita, to the Eastern Cherokees, 
or their legal representatives, except the fees herel)y set apart and contracted by the 
parties of the first part to the party of the second part for his expenses and services 
and the expenses and services of his associates or assigns, to wit: A sum equal to fifteen 
per centum on all sums appropriated to the use or benefit of the said Eastern or Emi- 
grant Cherokees l)y the Congi-ess of the United States on account of such claim. 

The said party of the second part hereby agrees to immediately proceed to the 
collection of the .said money and to pay all of the expenses which may be incurred 
by him or by his associates in the prosecution of the said collection without any 
expense to the parties of the first part; and the parties of the first part do, for valuable 
consideration, especially the expenses and services rendered in this behalf dirring 
the first and second sessions of the Fifty-sixth Congress, the receipt whereof is hereby 
acknowledged, hereby contract to pay to the said party of the second part and his 
associates or assigns a sum equal in amount to fifteen per centum on any recoveries 
to the Eastern or Emigrant Cherokees, as we are authorized to do under the resolu- 



EASTERN CHEKOKEES. 43 

tions of the councils of the said Eastern or Emigrant Cherokees, as above referred to, 
and the said party of the second part is hereby authorized to execute a receipt for the 
said fifteen per centum when the same shall have been appropriated and the warrants 
issued, or execute any other proper releases required by the officers of the United 
States, in the name and on behalf of the said Eastern or Emigrant Cherokees. The 
party of the second part fmlher expressly agrees that the payment of the said fee of 
fifteen per centum shall cover and include all expense of any kind and character 
whatever. It is expressly understood and agreed that the said Eastern or Emigrant 
Cherokees do not herein propose to recognize any contracts made or authorized by 
the Cherokee Nation for the collection of such claim, but that this is the only contract 
for its collection authorized or recognized by the Eastern or Emigrant Cherokee 
council. 

The above contract shall be limited in time and shall continue in force until July 
first, 1904, and no longer; except the question as to said indebtedness shall have been 
then referred to the courts or other tribunals, then, and in that event, such contract 
and assignments or agreements thereunder shall be and remain in full force and effect. 
It is further agreed that the party of the second part shall, at intervals of six months, 
make a detailed report of the status of the said claim, to be transmitted to the president 
of the council of the Eastern or Emigrant Cherokees for the information of the people. 

This contract is in lieu of all previous contracts and is the only contract recognized 
by the Eastern or Emigrant Cherokee council. 

In witness whereof we do hereto attach our hands and seals on this the 20th day of 
April, 1901, at Fort Smith. Arkansas. 

The executi\e committee of the Eastern or Emigrant Cherokees, parties of the first 
part: 

David Muskrat. [seal. 

Daniel Gritts. seal. 

Frank J. BouniNOT. [seal. 

Party of the second part : 

John Vaile. [seal.] 

interpreter's certificate. 

I, J. Henry Dick, of Tahlequah, Indian Territory, do hereby certify that I have 
carefully interpreted the foregoing contract to David Muskrat and Daniel Gritts and 
that they fully understand and endorse it as drawn in accordance with their direction, 
and that they sign it of their own free will and accord and for the purposes therein 
set forth . 

Witness my hand lliis tlic 2()th day of April. 1901. 

J. Henry Dick. 

U. S. District for the Western District of Arkansas, Fort Smith: 

This day personally appeared before me the jxirties to the above contract, t<^) wit, 
David Muskrat, of Flint district, Daniel Gritts. of Tahlequah district, and Frank J. 
Boudinot, of Fort Gibson. Illinois district, all of the Cherokee Nation, parties of 
the first part, and John Vaile, of Fort Smith, Arkansas, party of the second part, 
as stated to me at the time, who executed the above contract in my presence at 
the city of Fort Smith, State of Arkansas, on the 20th day of April, 1901, all of 
said parties being present and executing the same in person — said contract having 
been interpreted to David Muskrat and Daniel Gritts in my presence as certified 
above by J. Henry Dick. The parties of the first part c aimed to be authorized as 
tho- executive committee of the Eastern or Emigrant Cherokees under the authority 
of a resolution of the council and convention of the Eastern or Emigrant Cherokees, 
held at the general conwntion grounds at Bug Tucker's Springs, near Tahlequah, 
Cherokee Nation, on the sixteenth day of February, nineteen hundred; and also a like 
regolution of same authority at same place on April fourth, nineteen hundred, author- 
izing them to contract a sum equal to an amount not exceeding fifteen per centum of 
any sum or suras collected for said Indians. (Copy hereto attached.) 

In witness whereof, I hereunto attach my hand on this the 20th day of April, A. D. 
1901. 

John H. Rogers, 
United States District Judge for the Western District of Arkansas. 



44 EASTERN CHER0KEE8. 

United States of America, 

Northern District of the Indian Territory, ss: 

I, H. T. Wilder, a notary public within and for the northern district of the Indian 
Territory, do hereby certify that the within and foregoing four and one-half pages of 
typewritten matter contain a true copy of a contract purporting to be the original 
contract signed by one person in the Cherokee language and by Daniel Gritts, Frank 
J. Boudinot. and John Vaile in English, interpreted by J. Henry Dick, and executed 
before John H. Rogers, U. S. dist. judge for the western district of Arkansas, all signa- 
tures to which appear genuine. 

Witness my hand and notarial seal this August 18. 1903. 

(notarial seal.) H. T. Wildeu, 

Notary Public. 

My commission ex))ires June 2. 1907. 



Opinion. 

[Filed September 21, 1906.] 

The bill in this case is tiled by Frank J. Boudinot as an Eastern Cherokee Indian, 
on behalf of himself and such other Eastern Cherokees as may come in and be made 
parties complainant against the Secretary of the Interior and the Treasurer of the 
United States. It seeks to prevent the payment of certain counsel fees to the firm of 
Finkleberg, Nagle and Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, I. T., out 
of a judgment in favor of the Cherokee Nation for a large sum of money. A rule was 
issued to the above-named officials and upon the bill and accompanying affidavits, 
and their answers in the matter has been heard. 

The broad question involved is the validity of the contract upon which the claim 
for fees is based. Fiom the sworn answer of the Secretary of the Interior, fortified 
by public records, it appears that Congress, by an act entitled "An act to provide for 
the al]i>tment of the lands of the Cherokee Nation" (32 Stat, at Large, p. 716), con- 
ferred jurisdiction upon the Court of Claims to adjudicate "any claim which the 
Cherokee tribe, or any band thereof, arising under treaty stipulations, may have 
against the United States," and also provided that the prosecution of such claim 
should "be through attorneys employed and to be compensated in the manner pre- 
scribed in sections 2103 and 2106, both inclusive, of the Revised Statutes of the United' 
States, the tribe acting through, its pri^wipal chief in the employment of such attorneys.'^ 

Section 74 of said act provided that the .same shoidd not "take effect or l)e of any 
validity until ratified by a majority of the whole number of votes cast Ijy the legal 
voters of the Cherokee Nation," in the manner prescribed in section 75 thereof. This 
ratification was had as prescribed by said section at a i)opular election held August 7, 
1902, and didy certified to the President of the United States, as required by said act. 

Subsequently, on January 16, 1903, pursuant to the provisions of section 68 of said act, 
and in compliance with the requirements of the alcove quoted sections of the Revised 
Statutes, the contract in question was entered into between the Cherokee Nation, 
acting through its principal chief, Thomas M. Buflington, and the firm of Finkleberg, 
Nagel and Kirby and Edgar Smith, and was approved by the Acting Secretary of the 
Interior, as provided by law. Subsequently, on February 20, 1903, these attorneys, 
in pursuance of this contract, brought suit in the Court of Claims in the name of 
the Cherokee Nation against the United States. In accordance with the requirements 
of section 2104 of the Revised Statutes, the Acting Secretary of the Interior and the 
Acting Commissioner of Indian Affairs, on July 17. 1906. have certified to the proper 
accounting officers that this contract has been fully complied with on the part of said 
Finkleberg, Nagle and Kirby and Edgar Smith. 

It does not admit of debate that Congress, in providing a method whereby the 
claims of the Cherokee Nation and of the Eastern Cherokees against the United States 
should be prosecuted, was in no way exceeding its powers. Inasmuch as the contract 
in question was entered into and performed in strict accordance with this legislation, 
I am unable to find any grounds upon which this court should interfere with the pay- 
ment of the amount provided by the ccmtract out of the sum recovered by the Chero- 
kee Nation. Its validity is recognized by the terms of the judgment recovered in the 
Court of Claims, which diminishes the amount thereof by "such counsel fees as may 
be chargeable against the same under the provisions of the contract with the Cherokee 
Nation of January 16, 1903," being the contract in question. 



EASTERN CHEROKEES. 45 

It is true that, after suit had been instituted by counsel under this contract in the 
name of the Cherokee Nation, the Eastern ('herokees, employing other counsel, 1)egan 
two suits in their own name to prosecute their claim against the United States. The 
three suits were consolidated by order of the court, but the judgment rendered is in 
favor of the Cherokee Nation, to be distributed according to the ascertained interests 
of the Eastern Cherokees and others. It would thus appear that in this litigation the 
Cherokee Nation was recognized as a trustee for those who were entitled to this fund, 
and this seems to have been the view taken liy the Court of Claims. In its opinion it 
says: "As to these Eastern nonresident Cherokee aliens the nation acted simply as 
an attorney collecting a debt. In its hands the moneys would be an implied trust 
for the benefit of the equitable owners." In this view of the case the attorneys who 
were employed by the trustee, acting under proper authority in the premises, would 
be entitled to compensation out of the fund recovered, notwithstanding the cestui 
que trust had deemed it advisalde to employ independent counsel to safeguard his 
interests. 

For these reasons the rule will be discharged. 

AsuLEY M. (idi [.D, .hislire. 



Replication. 

[Filed Sei)tember 2{K IJtOG, in the supreme court of the Distiict of Columltia, this 29th 
day of September, A. D. 1906.1 

Frank J. Boudinot I 

against lEquity, No. 26436. 

Ethan A. Hitchcock, Secretary of thk Interior, et al.) 

The complainant joins issue on the answers of the defendants heretofore filed in the 
above-entitled cause. 

Chas. Poe, 
Samuel A. Putnam, 
Solicitors for the Complainant. 



Decree. 

[Filed October 8, 1906, in the supreme court of the District of Columbia, holding an 

equity term.] 

Frank J. Boudinot, Complainant, 

vs. 

Ethan A. Hitchcock, Secretary of the Interior 

of the United States, 

and 

Charles H. Treat, Treasurer of the United 

States. 



In equity, docket No. 58, 
case No. 26436. 



This cause having come on to be heard on complainant's motion for writs of injunc- 
tion to be directed to the defendants and each of them as specified in complainant's 
bill of complaint was argued by counsel for the respective parties and submitted to 
the court upon the bill of complaint and affidavits filed in support thereof, the pleas, 
answers, and accompanying exhibits of defendants, the rule to show cause heretofore 
issued by the court and the return of the defendants thereto, and the court being now 
sufficiently advised in the premises. 

It is this 8th day of October, A. D. 1906, adjudged and ordered that said rule to show 
cause be and the same is hereby discharged and held for naught, and it further appear- 
ing to the court that said bill of complaint is defective for want of indispensable par- 
ties, and also fails to disclose any equity which would require or justify the granting 
of the relief prayed, , 

It is further adjudged, ordered, and decreed that said bill of complaint be and the 
same is hereby dismissed at complainant's costs. 

Ashley M. Gould, 
Associate .Tvstice. Svpreme Court of the District of Columbia. 



46 EASTERN CHER0KEP:S. 

Appeal, Etc. 

[Filed October l(i, 1906. J 

Frank J. Boudinot 1 

vs. [Equity, No. 26436. 

Ethan A. Hitchcock, Secy., et al. J 

Now comes the complainant and in open court prays an appeal from the decree 
passed herein to the court of appeals of the District of Columbia, which is allowed by 
the court, and the penalty of the bond for costs is hereby fixed at one hundred dollars. 

o * 1 1.^*1, in,^^ Ashley M. Gould, Justice. 

October 16th, 1906. 



. „ vs. >Equitv, No. 26436. 

Ethan A. Hitchcock, Secy., etc., et al. 



Memorandum. 
October 16, 1906. Appeal bond— filed. 

Designation to Clerk for Preparation of Transcripi- of Record. 
[Filed October 16, 1906.] 
Frank J. Boudinot 
I 

Mr. Young: ~r-- 

In making up the transcript of the record on appeal in this cause you will include 
the following papers: Bill of complaint; rule to show cause; affidavits in support of 
bill; answers; opinion of the court; replication and date of filing the same decree 
dismissing Inll; prayer for appeal and order thereon; mem. of approval appeal bond. 

Chas. Poe, Solr.fnr Complt. 

Supreme court of the District of Columbia. 

United States of America, 

District of Columbia, ss: 

I, John R. Young, clerk of the supreme court of the District of Columbia, hereby 
certify the foregoing pages, numbered from 1 to 76, inclusive, to be a true and correct 
transcript of th(j record, as per directions of counsel herein filed, copy of which is made 
part of this transcript, in cause No. 26436 in equity, wherein Frank J. Boudinot is 
complainant and Ethan A. Hitchcock, Secretary of the Interior of the United States 
et al., are defendants, as the same remains upon the files and of record in said court' 

In testimony whereof I hereunto subscribe my name and affix the seal of said court' 
at the city of Washington, in said District, this 30th day of October, A. D. 1906. 

t^'^-'^^] John R. Young, Clerk. 

Exhibit No. 7. 

1416 F Street, 

XT ,, XT r„ Washington, D. C, Sevtemher 21, 1906. 

Hon. Charles H. Treat, 

Treasurer of the Urnted States. 
Sir: Mr. Justice Gould, of the supreme court of the District of Columbia to-dav 
passed an order in the cause entitled Frank J. Boudinot against Ethan A. Hitchcock 
M "oS ""V^^'f Interior and Charles H. Treat, Treasurer of the United States, equity 
No 26436 discharging the rule to show cause why a preliminary injunction should 
not now be granted restraining the present payment of a sum, amounting to about 



one hundred and fifty thousand dollars, claimed to be due by Messrs Fmkelbere 
Nagel & Kirby, of St. Louis, Mo., and Edgar Smith, of Vinita, Indian Territory 
under n rnntrart wV..oh tiio„ claim to have had with the CI ' "' " " 

is. 



^ " -^....j, >.. .^i, ^.^^xo, x.iy., duu i:>ugar omun, oi vmita, Indian Territory, 
under a contract which they claim to have had with the Cherokee Nation for the 
payment to them of certain fees. 



EASTERN CHEROKEES. 

WTiile one of the objects of this proceeding was to obtain a preliminary injunction 
enjoining the payment by you of this fund, that was far from its sole object, and the 
rehisal by Mr. Justice Gould at this time to issue the high prerogative writ of injunc- 
tion by no means determines the rights of the parties claiming to be interested in the 
fund in controversy, as the hearing of the application for the preliminary writ was 
had only upon the papers on file and not upon bill, answer, and proof. It is our 
intention to proceed at once, or as soon as your answer and that of the Secretary of the 
Interior to the bill of complaint have been filed to establish the allegations of our 
bill of complaint by proof, and we shall be as expeditious about this as possible. Under 
our practice in such cases we have had no opportunity up to this point in the cause 
to offer our proof, but we can assure you that we will cooperate with the Government's 
attorneys to speed the cause. 

Our object in writing to you is to protest most respectfully upon the behalf of the 
Eastern Cherokees, all of whom we represent and who are citizens of the United States, 
against the payment by you of the fund claimed under this pretended contract for 
services which never were rendered, and to notify you that if it should be paid while 
this litigation is pending, in our humble judgment the Government of the United 
States can be compelled by appropriate proceedings to pay it a second time. (Pam- 
To-Pee vs. United States, 187 U. S., 371.) 1 he course of practice in this juri.sdiction is 
such that at this stage of the cause we are not permitted to file a bond of indemnity 
therein to protect persons in interest from any slight damage which may be caused by 
a short delay in the payment by you of this fund. Ihe interests of clients, as well as 
of the United States Government, unite in making it both proper and prudent to post- 
pone the payment of this fund until the case can be investigated fully and determined 
upon its merits, and it is with that view and in that spirit we write to you, and we trust 
that you will consider it to be your duty and for the protection of the Government of 
the United States to withhold, for the present, the payment of this claim. 
Very respectfully, yours, 

Chas. Poe, 
Saml. a. Putnam, 
Solrs. for Eastern Cherokees. 



Exhibit No. 8. 

Treasury Department, 
Office of the Treasurer of the United States, 

Washington, September 24, 1906. 
Chas. Poe and Saml. A. Putnam, 

Solicitors for Eastern Cherokees, 1416 F street, Washington, D. C. 
Sirs: Your letter of the 21st instant, in which you protest against payment of claim 
made by persons named for services claimed to have been rendered Eastern Chero- 
kees under contract, has been referred for attention to the Solicitor of the Treasury. 
Should you have occasion to write again on this or a similar subject, please address 
that officer. 

Respectfully, Chas. H. Treat, 

Treasurer of the United States. 

o 











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